Com. v. Laird, R. ( 2018 )

J-S81014-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT LEE LAIRD :
:
Appellant : No. 1109 MDA 2017
Appeal from the PCRA Order June 20, 2017
In the Court of Common Pleas of Mifflin County Criminal Division at
No(s): CP-44-CR-0000629-2015
BEFORE: PANELLA, J., STABILE, J., and PLATT*, J.
MEMORANDUM BY PANELLA, J. FILED MAY 01, 2018
Robert Laird appeals from the order dismissing his first petition pursuant
to the Post Conviction Relief Act (“PCRA”). Additionally, Laird’s court-
appointed counsel, Stuart A. Cilo, Esquire, has filed a petition to withdraw. We
grant counsel permission to withdraw and affirm the PCRA court’s order.
On December 22, 2015, Laird pled guilty to driving under the influence
of alcohol at the highest statutory category for blood alcohol content (“BAC”).
This was Laird’s second offense under the statute. Furthermore, he
acknowledged that he had refused blood testing to determine his BAC. As a
result, the crime was graded as a first-degree misdemeanor pursuant to 75
Pa.C.S.A. § 3803(b)(4).
The court imposed a sentence of time served, 90 days, to five years
imprisonment. Laird did not file post-sentence motions or a direct appeal.
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* Retired Senior Judge assigned to the Superior Court.
J-S81014-17
On June 23, 2016, the United States Supreme Court filed its decision in
Birchfield v. North Dakota, 136 S. Ct. 2160 (2016). This decision declared
that a motorist may not be criminally punished for exercising his right to refuse
a warrantless blood test. See id., at 2186. We have recognized that
Birchfield invalidated the enhanced penalty for refusal contained in 75
Pa.C.S.A. § 3803(b)(4). See, e.g., Commonwealth v. Giron, 155 A.3d 635
(Pa. Super. 2017).
On November 30, 2016, Laird filed the instant PCRA petition, asserting
his sentence was illegal pursuant to Birchfield. The court appointed counsel
to represent Laird and subsequently held a hearing on Laird’s petition.
Ultimately, the court dismissed the petition, concluding that Birchfield is not
applicable to cases on collateral review. This timely appeal followed.
Counsel has filed a petition to withdraw and an Anders brief.1 Laird has
filed a response to counsel’s petition to withdraw. We will address the issue
raised by counsel before addressing Laird’s response.
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1 The dictates of Anders v. California, 385 U.S. 738 (1967), apply only on
direct appeal, not on collateral review. Counsel files an Anders brief on direct
appeal when he determines the appeal is “wholly frivolous.” Id., at 744. When
counsel seeks to withdraw from representation on collateral appeal, the
dictates of Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), apply
and counsel files a “no-merit” letter. We, however, may accept an Anders
brief in lieu of a Turner/Finley “no-merit” letter because an Anders brief
provides greater protection to a defendant. See, e.g., Commonwealth v.
Reed, 107 A.3d 137, 139 n.5 (Pa. Super. 2014). We will regard the Anders
brief as a Turner/Finley letter while noting that, had this been a direct
appeal, counsel’s Anders brief would have been woefully deficient.
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Counsel obliquely identifies a single issue that Laird wishes to pursue on
appeal: the legality of his sentence. The PCRA court concluded that while
Birchfield renders Laird’s sentence illegal, it cannot be applied on collateral
review pursuant to Commonwealth v. Washington, 142 A.3d 810 (Pa.
2016). This Court has subsequently adopted the PCRA court’s reasoning in
Commonwealth v. Olson, ___ A.3d ___, ___, 2018 WL 847859, *4 (Pa.
Super. 2018) (“Based on the foregoing, we hold that Birchfield does not
apply retroactively in Pennsylvania to cases pending on collateral review.”).
Thus, counsel is correct in finding this issue to be meritless.
In his responses to counsel’s petition,2 Laird cites to Commonwealth
v. McAdoo, 46 A.3d 781 (Pa. Super. 2012) (holding frisk of defendant did not
violate prohibition on warrantless searches), and Commonwealth v. Zuber,
353 A.2d 441 (Pa. 1976) (holding Commonwealth’s inability to keep promise
made in plea bargain rendered guilty plea involuntary). Laird does not provide
any explicit argument to link these cases to his circumstances, and we cannot
reconcile this leap of logic ourselves.
Thus, after our independent review, we agree with counsel’s assessment
that there are no meritorious issues on appeal. We therefore grant counsel
permission to withdraw, and affirm the order dismissing Laird’s petition.
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2 The responses filed by Laird in this Court include a document entitled
“Emergency Petition for the ‘Writ of Habeas Corpus.’” The relief requested by
this document is vacation of his “illegal” sentence and a remand for re-
sentencing. We therefore do not treat this document as a separate motion.
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J-S81014-17
Order affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/01/2018
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