Com. v. Gehr, D.

J-S12038-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DAVID GREGORY GEHR, :
:
Appellant : No. 1012 MDA 2016
Appeal from the Judgment of Sentence June 7, 2016
in the Court of Common Pleas of Lycoming County,
Criminal Division, No(s): CP-41-CR-0001010-2015
BEFORE: PANELLA, OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 13, 2017
David Gregory Gehr (“Gehr”) appeals from the judgment of sentence
imposed following his guilty plea to person not to possess a firearm, driving
under the influence (“DUI”)-refusal, possession of a small amount of
marijuana, and possession of drug paraphernalia. See 18 Pa.C.S.A.
§ 6105(a)(1); 75 Pa.C.S.A. § 3802(a)(1); 35 P.S. § 780-113(a)(31), (32).1
Additionally, Gehr’s counsel, Joshua M. Bower, Esquire (“Attorney Bower”),
has filed a Petition to Withdraw as Counsel and an accompanying brief
pursuant to Anders v. California, 386 U.S. 738, 744 (1967). We deny
Attorney Bower’s Petition, vacate the judgment of sentence, and remand for
resentencing.
On January 11, 2015, Gehr backed his vehicle into David Lunger’s
(“Lunger”) vehicle. Gehr fled the scene without exchanging any information
1
Gehr also pled guilty to various summary traffic offenses. See 75
Pa.C.S.A. §§ 1786(f), 3309(1), 3714(a), 3745(a).
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with Lunger. Lunger called the police and began to follow Gehr. The police
eventually stopped Gehr. Gehr was found to be intoxicated, and possessed
a small amount of marijuana, a glass pipe, and a .22 caliber rifle. Gehr told
the police that he was drinking vodka at a friend’s home, and that he
smokes marijuana every day to relax. The police arrested Gehr and
transported him to the hospital, where Gehr refused to submit to a blood
test. Subsequently, the police determined that Gehr was a convicted felon
and was not permitted to possess a firearm.
On January 5, 2016, Gehr pled guilty to the above-mentioned crimes.
On April 20, 2016, the trial court sentenced Gehr to five to ten years in
prison for the person not to possess a firearm conviction, and a consecutive
prison term of one and one-half to five years for the DUI-refusal conviction.
The trial court also imposed fines upon Gehr. The trial court did not impose
any further prison sentences on the remaining convictions. Gehr filed Post-
Sentence Motions, seeking to withdraw his guilty plea and reconsideration of
his sentence. The trial court denied Gehr’s request to withdraw his plea, but
granted Gehr’s reconsideration of sentence request. On June 7, 2016, the
trial court imposed the same sentences for the person not to possess a
firearm and DUI-refusal convictions, but imposed them concurrently. The
trial court did not change the remaining part of the prior sentencing Order.
Gehr filed a timely Notice of Appeal.
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We must first determine whether Attorney Bower has complied with
the dictates of Anders in petitioning to withdraw from representation. See
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en
banc) (stating that “[w]hen faced with a purported Anders brief, this Court
may not review the merits of any possible underlying issues without first
examining counsel’s request to withdraw.”). Pursuant to Anders, when an
attorney believes that an appeal is frivolous and wishes to withdraw as
counsel, he or she must
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the brief to the defendant; and 3) advise the defendant that
he or she has the right to retain private counsel or raise
additional arguments that the defendant deems worthy of the
court’s attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc).
Additionally, the Pennsylvania Supreme Court has determined that a
proper Anders brief must
(1) provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of the record,
controlling case law, and/or statutes on point that have led to
the conclusion that the appeal is frivolous.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
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Here, Attorney Bower has complied with the requirements set forth in
Anders by indicating that he has conscientiously examined the record and
determined that an appeal would be frivolous. Further, Attorney Bower
provided a letter to Gehr, informing Gehr of his intention to withdraw, and
advising Gehr of his rights to retain new counsel, proceed pro se, and file
additional claims. Finally, Attorney Bower’s Anders brief meets the
standards set forth in Santiago by providing a factual summary of Gehr’s
case, with support for Attorney Bower’s conclusion that Gehr’s plea was
knowingly, voluntarily, and intelligently made. Because Attorney Bower has
complied with the procedural requirements for withdrawing from
representation, we will independently review the record to determine
whether Gehr’s appeal is, in fact, wholly frivolous.
In the Anders brief, Attorney Bower raises the following question for
our review:
Did the [trial] court err when it denied [Gehr’s] [M]otion to
withdraw his guilty plea, after sentencing, when [] Gehr made a
showing of manifest injustice after testifying [that] he entered
into the plea with an expectation of receiving a county
sentence[,] despite the nature of the crime and his prior record
score?
Anders Brief at 9 (unnumbered). Gehr did not file a response.
Gehr contends that the trial court erred in denying his Motion to
withdraw his guilty plea. Anders Brief at 14 (unnumbered). Gehr argues
that he did not knowingly plead guilty because he expected a county
sentence, not a state sentence. Id. at 14-15 (unnumbered). Gehr asserts
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that he did not have sufficient time to discuss the plea with his attorney
prior to the guilty plea hearing. Id. at 15 (unnumbered).
Our law is clear that, to be valid, a guilty plea must be
knowingly, voluntarily and intelligently entered. There is no
absolute right to withdraw a guilty plea, and the decision as to
whether to allow a defendant to do so is a matter within the
sound discretion of the trial court. To withdraw a plea after
sentencing, a defendant must make a showing of prejudice
amounting to “manifest injustice.” A plea rises to the level of
manifest injustice when it was entered into involuntarily,
unknowingly, or unintelligently. A defendant’s disappointment in
the sentence imposed does not constitute “manifest injustice.”
Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa. Super. 2008)
(citation omitted).
In order to ensure a voluntary, knowing, and intelligent plea, trial
courts are required to ask the following questions in the guilty plea colloquy:
1) Does the defendant understand the nature of the charges to
which he or she is pleading guilty or nolo contendere?
2) Is there a factual basis for the plea?
3) Does the defendant understand that he or she has the right to
a trial by jury?
4) Does the defendant understand that he or she is presumed
innocent until found guilty?
5) Is the defendant aware of the permissible ranges of sentences
and/or fines for the offenses charged?
6) Is the defendant aware that the judge is not bound by the
terms of any plea agreement tendered unless the judge
accepts such agreement?
Id. (citation omitted); see also Pa.R.Crim.P. 590, cmt.
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The guilty plea colloquy must affirmatively demonstrate
that the defendant understood what the plea connoted and its
consequences. Once a defendant has entered a plea of guilty, it
is presumed that he was aware of what he was doing, and the
burden of proving involuntariness is upon him. In determining
whether a guilty plea was entered knowingly and voluntarily, ...
a court is free to consider the totality of the circumstances
surrounding the plea.
Bedell, 954 A.2d at 1212 (citations and quotation marks omitted).
At the plea colloquy, Gehr indicated that he understood the English
language, and that he was not under the influence of alcohol or drugs.
Written Guilty Plea Colloquy, 1/5/16, at 5. Gehr understood the charges
against him, and admitted to the facts that led to those charges. Id. at 2,
5. Gehr also indicated that by pleading guilty, he understood that he was
foregoing certain rights, including, inter alia, the presumption of innocence,
the right to a jury trial, and most of his direct appeal rights. Id. at 2-5.
Gehr affirmed that he was pleading guilty of his own free will, that no one
had forced him to plead guilty, and that he was satisfied with his attorney’s
representation. Id. at 5, 6. Further, Gehr understood that he was entering
an open guilty plea, and that the trial court was not bound by the terms of
the plea. Id. at 1, 2. The trial court also informed Gehr about the
permissible ranges of sentences for each of the convictions. Id. at 1, 2; see
also id. at 2 (wherein Gehr acknowledged that nobody had promised or
suggested the actual sentence that the judge would impose).
Based upon the foregoing, we conclude that Gehr knowingly,
voluntarily and intelligently tendered his guilty plea. See Commonwealth
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v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011) (stating that a person
who elects to plead guilty is bound by the statements he made during the
plea colloquy, and may not later assert grounds for withdrawing the plea
which contradict those statements); Commonwealth v. Muhammad, 794
A.2d 378, 384 (Pa. Super. 2002) (stating that appellant cannot claim that he
involuntarily entered a guilty plea where he stated that no one threatened
him to plead guilty). In point of fact, Gehr specifically stated that he
understood the permissible ranges of sentence and that no specific prison
sentence, whether county or state, was promised to him. See
Muhammad, 794 A.2d at 383 (stating that “disappointment by a defendant
in the sentence actually imposed does not represent manifest injustice.”).
Thus, Gehr’s claim is frivolous.
However, we must conduct an independent review of the record to
determine whether there are any other non-frivolous issues that Gehr could
raise on appeal.2 We will first determine whether the imposition of Gehr’s
sentence for the DUI-refusal conviction violated the recent United States
Supreme Court holding in Birchfield v. North Dakota, 136 S. Ct.
2
We acknowledge that “[t]he entry of a guilty plea constitutes a waiver of
all defects and defenses except lack of jurisdiction, invalidity of the plea, and
illegality of the sentence.” Commonwealth v. Tareila, 895 A.2d 1266,
1267 (Pa. Super. 2006).
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2160 (2016).3
In Birchfield, the Supreme Court concluded that “a breath test, but
not a blood test, may be administered as a search incident to a lawful arrest
for drunk driving.” Birchfield, 136 S. Ct. at 2185. Additionally, the
Supreme Court held that blood tests taken pursuant to implied consent laws
are an unconstitutional invasion of privacy. Id. at 2186. The Supreme
Court stated that “motorists cannot be deemed to have consented to submit
to a blood test on pain of committing a criminal offense.” Id.; see also id.
(concluding that the petitioner could not be convicted of refusing a
warrantless blood draw following an arrest for driving under the influence).
Here, at the time of his sentencing and resentencing hearing, Gehr
3
In the letter informing Gehr of his request to withdraw as counsel, Attorney
Bower states that the Birchfield decision may impact Gehr’s DUI-refusal
conviction. See Letter, 11/28/16. However, Attorney Bower indicated that
Birchfield was decided after Gehr’s sentence, and while his appeal was
pending, and thus, did not raise a Birchfield claim in the Anders brief.
See id. Here, Birchfield was decided on June 23, 2016, after Gehr’s
sentence was imposed, but during the pendency of the instant appeal.
Because this issue relates to the legality of sentence, and Birchfield was
decided during the pendency of Gehr’s appeal, we may address the legality
challenge. See Commonwealth v. Barnes, 151 A.3d 121, 125-26 (Pa.
2016); see also Schriro v. Summerlin, 542 U.S. 348, 351 (2004) (stating
that a United States Supreme Court decision resulting in a new rule of law
“applies to all criminal cases still pending on direct review.”).
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was subject to the penalties set forth in section 3804(c)(2), 4 as he pled
guilty to DUI under section 3802(a)(1), his second offense, and refused to
consent to a blood test. See N.T., 4/20/16, at 4 (noting that the mandatory
minimum was ninety days); Sentencing Order, 4/20/16, at 3 (unnumbered)
(stating that Gehr must pay the mandatory minimum fine of $1,500).5
As the Birchfield Court held that the practice of criminalizing the
failure to consent to blood testing following a driving under the influence
arrest was unconstitutional, we conclude that the trial court improperly
4
Section 3804(c)(2) states the following:
(c) Incapacity; highest blood alcohol; controlled
substances.--An individual who violates section 3802(a)(1) and
refused testing of blood or breath or an individual who violates
section 3802(c) or (d) shall be sentenced as follows:
***
(2) For a second offense, to:
(i) undergo imprisonment of not less than 90 days;
(ii) pay a fine of not less than $1,500;
(iii) attend an alcohol highway safety school approved by
the department; and
(iv) comply with all drug and alcohol treatment
requirements imposed under sections 3814 and 3815.
75 Pa.C.S.A. § 3804(c)(2).
5
As part of its June 7, 2016 Sentencing Order, the trial court stated that
apart from imposing the sentences concurrently, the remainder of the April
20, 2016 Sentencing Order remained in effect. See Sentencing Order,
6/7/16, at 2 (unnumbered).
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relied upon section 3804(c)(2) in imposing a mandatory minimum sentence
upon Gehr. See Commonwealth v. Giron, 2017 Pa. Super. 23, *4 (Pa.
Super. 2017) (holding that “pursuant to Birchfield, in the absence of a
warrant or exigent circumstances justifying a search, a defendant who
refuses to provide a blood sample when requested by police is not subject to
the enhanced penalties provided in 75 Pa.C.S.A. §§ 3803-3804.”). Because
there was no statutory authority to impose the sentence, we must vacate
the judgment of sentence and remand for resentencing.6 See id.
Based upon the foregoing, we affirm Gehr’s convictions, vacate his
sentence and remand for resentencing. Accordingly, we deny Attorney
Bower’s Petition to Withdraw.7
6
We note that the trial court imposed a sentence of one and one-half to five
years in prison for the DUI-refual conviction, well above the mandatory
minimum, and ran this sentence concurrent to the persons not to possess
firearm conviction. Ostensibly, the trial court could impose the same
sentence during resentencing. However, in imposing the sentence, the trial
court cannot consider the mandatory minimum sentence in section
3804(c)(2), and cannot impose the mandatory fine.
7
Gehr has filed a separate Motion for Change of Appointed Counsel.
However, based upon our disposition of this case and denial of Attorney
Bower’s Petition to Withdraw, we deny Gehr’s Motion. Nevertheless, Gehr is
free to file such a motion with the trial court upon remand for resentencing.
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Petition to Withdraw as Counsel denied. Judgment of sentence
vacated. Case remanded for resentencing. Motion for Change of Appointed
Counsel denied. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/2017
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