Com. v. Kaplan, B.

J-S15045-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BARRY KAPLAN :
:
Appellant : No. 987 EDA 2021
Appeal from the PCRA Order Entered April 14, 2021
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0002297-2018
BEFORE: NICHOLS, J., MURRAY, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED SEPTEMBER 28, 2022
Barry Kaplan (“Kaplan”) appeals from the order dismissing his petition
filed pursuant to the Post Conviction Relief Act (“PCRA”).1 Kaplan’s counsel
(“Counsel”) has filed a petition to withdraw and a no-merit brief.2 We affirm
and grant Counsel’s petition to withdraw.
We summarize the facts and procedural history of this appeal from the
record. In the evening of February 1, 2018, Sergeant Tony Colgan observed
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1 See 42 Pa.C.S.A. §§ 9541-9546.
2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
Counsel seeks to withdraw under Anders v. California, 386 U.S. 738 (1967),
which applies in direct appeals, not PCRA appeals. “Where counsel seeks to
withdraw on appeal from the denial of PCRA relief, a Turner/Finley ’no-merit
letter’ is the appropriate filing. However, because an Anders brief provides
greater protection to a defendant, this Court may accept an Anders brief in
lieu of a Turner/Finley letter.” Commonwealth v. Reed, 107 A.3d 137, 139
n.5 (Pa. Super. 2014) (some quotation marks and brackets omitted).
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Kaplan driving in an erratic manner, activated the emergency lights of his
marked police car, and began following Kaplan. See Criminal Complaint,
Affidavit of Probable Cause, 2/1/18, at 1 (“affidavit of probable cause”).
Kaplan did not stop, and Sergeant Colgan continued to follow Kaplan to
Kaplan’s residence. See id. Sergeant Colgan and Kaplan had a physical
altercation outside of Kaplan’s house, after which Kaplan entered his house
and locked the front door. See id. The sergeant knocked on the door several
times, and Kaplan eventually unlocked his door. See id. The sergeant
entered the home and after another physical struggle arrested Kaplan with
the assistance of another officer. See id. Throughout the incident, the
sergeant noticed that Kaplan was unsteady on his feet, slurred his speech,
and had bloodshot and glassy eyes. See id. The sergeant transported Kaplan
to a hospital, requested that he submit to a blood test, and read him DL-26B
warnings.3 See id. Kaplan refused a blood test. See id.The Commonwealth charged Kaplan with driving under the influence
(“DUI”)—incapable of driving safely (third offense), as well as simple assault,
harassment, disorderly conduct, and two traffic violations.4 Kaplan, who was
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3 A DL-26B form contains standard warnings given before a request for blood
testing. See Commonwealth v. Robertson, 186 A.3d 440, 444 (Pa. Super.
2018).
4 See 75 Pa.C.S.A. § 3802(a)(1); 18 Pa.C.S.A. §§ 2701(a), 2709(a)(1),
5503(a)(1); 75 Pa.C.S.A. §§ 3301(a), 3362(a)(1.2). The Commonwealth did
not seek a mandatory minimum sentence based on Kaplan’s refusal of a blood
test. See Information, Count 1, 5/9/18 (stating only that Kaplan’s DUI offense
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represented by counsel (“plea counsel”), proceeded to a guilty plea hearing
on September 26, 2018, at which the Commonwealth amended the grade of
the DUI count from a first-degree misdemeanor to a second-degree
misdemeanor. See N.T., 9/26/18, at 3. After completing written and in-court
guilty plea colloquies, Kaplan pleaded guilty to the amended count of DUI and
simple assault based on the facts stated in the affidavit of probable cause.5
On October 30, 2018, the trial court sentenced Kaplan to a term of one to two
years of imprisonment for DUI and a consecutive two years of probation for
simple assault.6 Kaplan timely filed a motion for reconsideration of his
sentence, which the trial court denied. Kaplan did not file a direct appeal.
Kaplan timely filed a pro se PCRA petition, and the court appointed
Counsel to represent him. Counsel filed an amended PCRA petition asserting
that plea counsel was ineffective for failing to advise Kaplan of the United
States Supreme Court decision in Birchfield v. North Dakota, 579 U.S. 438(2016), and that Kaplan would not have pleaded guilty had he been aware of
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constituted a third offense for the purposes of grading and sentencing under
75 Pa.C.S.A. §§ 3803 and 3804, respectively).
5 The remaining charges were dismissed by nolle prosequi.
6That same day, the trial court also revoked Kaplan’s probation in a prior case
and resentenced him to a concurrent term of one to two years of
imprisonment.
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Birchfield.7 The PCRA court issued a notice of intent to dismiss the petition.
See Pa.R.Crim.P. 907. Kaplan did not respond, and the court dismissed the
petition. Kaplan timely appealed, and both he and the PCRA court complied
with Pa.R.A.P. 1925.
Counsel has filed a petition to withdraw and a no-merit brief identifying
the following issue for review:
Was the [PCRA] court in error for dismissing [Kaplan’s] petition
for post conviction relief alleging ineffectiveness in that [plea
counsel] did not discuss [Birchfield] prior to his pleading guilty
rendering [the plea] involuntarily entered?
No-Merit Brief at 4.
Before addressing the merits of the issue identified by Counsel, we must
assess whether Counsel’s filings satisfy the technical requirements
of Turner/Finley. See Commonwealth v. Muzzy, 141 A.3d 509, 510 (Pa.
Super. 2016) (holding that “[p]rior to addressing the merits of the appeal, we
must review counsel’s compliance with the procedural requirements for
withdrawing as counsel”).
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7 In Birchfield, the Supreme Court held that a warrantless blood test is not
valid under an implied consent law when there are criminal sanctions for
refusing consent. See Birchfield, 579 U.S. at 477. In Commonwealth v.
Monarch, 200 A.3d 51, 57 (Pa. 2019), our Supreme Court held that
Birchfield prohibited the imposition of enhanced penalties for a DUI charge
based on a defendant’s refusal to consent to a blood test. We note that a DL-
26B warning form, which was used in this case, contains revisions to the
former DL-26 form in order to comply with Birchfield. See Robertson, 186
A.3d at 444.
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Counsel seeking to withdraw from PCRA representation must:
(1) detail the nature and extent of counsel’s review of the case;
(2) list each issue the petitioner wishes to have reviewed; and (3)
explain counsel’s reasoning for concluding that the petitioner’s
issues are meritless. Counsel must also send a copy of the brief
to the petitioner, along with a copy of the petition to withdraw,
and inform the petitioner of the right to proceed pro se or to retain
new counsel. If the brief meets these requirements, we then
conduct an independent review of the petitioner’s issues.
Commonwealth v. Knecht, 219 A.3d 689, 691 (Pa. Super. 2019) (internal
citations omitted).
Here, Counsel has detailed the extent of his review of the case, listed
the issue Kaplan wishes to have reviewed, and explained why he believes the
issue lacks merit. Additionally, Counsel avers that he served Kaplan with a
copy of his no-merit brief and attached to his petition to withdraw a letter
advising Kaplan of his appellate rights. Counsel, therefore, has complied with
the technical requirements of Turner/Finley, and we proceed to an
independent review of the issue.8
Our standard of review of an order denying PCRA relief is well settled:
Our review of a PCRA court’s decision is limited to examining
whether the PCRA court’s findings of fact are supported by the
record, and whether its conclusions of law are free from legal
error. We view the record in the light most favorable to the
prevailing party in the PCRA court. We are bound by any
credibility determinations made by the PCRA court where they are
supported by the record. However, we review the PCRA court’s
legal conclusions de novo.
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8 Kaplan has not filed a response to Counsel’s petition to withdraw or a brief
either pro se or with new counsel.
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Commonwealth v. Staton, 184 A.3d 949, 954 (Pa. 2018) (internal citations
and quotations omitted).
To obtain relief under the PCRA, based on an ineffective assistance of
counsel claim relating to the entry of a guilty plea, a petitioner must establish:
(1) the underlying claim has arguable merit; (2) no reasonable
basis existed for counsel’s actions or failure to act; and (3)
petitioner suffered prejudice as a result of counsel’s error such
that there is a reasonable probability that the result of the
proceeding would have been different absent such error. Trial
counsel is presumed to be effective, and [an a]ppellant bears the
burden of pleading and proving each of the three factors by a
preponderance of the evidence.
The right to constitutionally effective assistance of counsel
extends to counsel’s role in guiding his client with regard to the
consequences of entering into a guilty plea. Allegations of
ineffectiveness in connection with the entry of a guilty plea will
serve as a basis for relief only if the ineffectiveness caused the
defendant to enter an involuntary or unknowing plea. Where the
defendant enters his plea on the advice of counsel, the
voluntariness of the plea depends on whether counsel’s advice
was within the range of competence demanded of attorneys in
criminal cases. Thus, to establish prejudice, the defendant must
show that there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted
on going to trial. The reasonable probability test is not a stringent
one; it merely refers to a probability sufficient to undermine
confidence in the outcome.
Commonwealth v. Barndt, 74 A.3d 185, 192-93 (Pa. Super. 2013) (internal
quotations and citations omitted).
The sole issue raised by Kaplan in the PCRA court and identified in this
appeal is whether plea counsel was ineffective for failing to advise Kaplan of
Birchfield prior to the entry of his plea. Counsel asserts that the issue is
meritless because “there were no blood testing results to suppress” and
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Birchfield had no impact on the grading of the DUI offense or Kaplan’s
sentence. See No-Merit Brief at 9-10.
The PCRA court, similarly, explains that it dismissed Kaplan’s amended
PCRA petition because “any relief that Birchfield could have provided to
[Kaplan] has been provided to him.” PCRA Court Opinion, 11/10/21, at 2.
The court noted that the parties agreed to reduce the grade of the DUI count
from a first-degree misdemeanor to a second-degree misdemeanor. Id. at 2-
3.
Following our review, we agree that Birchfield, which was decided in
2016, did not apply to the circumstances of this case. As noted by Counsel,
Kaplan refused a blood test following his arrest in 2018, and there was no test
result to suppress based on Birchfield’s specific holding that “motorists
cannot be deemed to have consented to submit to a blood test on pain of
committing a criminal offense.” See Birchfield, 579 U.S. at 477.
Furthermore, nothing in the record indicates that the Commonwealth sought
a mandatory minimum sentence or an increased grading of the DUI count due
to Kaplan’s refusal to take a blood test. Rather, as noted by the PCRA court,
the parties agreed to amend the DUI count to a second-degree misdemeanor,
and the grading of the DUI count was based solely on Kaplan’s prior offenses,
not his refusal of a blood test.9
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9When Kaplan committed the offense and entered his plea, the DUI count to
which he pleaded guilty, namely, a violation under section 3802(a)(1) as a
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Significantly, the record also establishes that Kaplan was properly
advised of the sentencing consequences of his decision to plead guilty to the
DUI count. Specifically, Kaplan was apprised of the maximum sentence and
fine for a second-degree misdemeanor DUI and advised that the mandatory
minimum sentence for the DUI count was ten days in jail and a $500 fine.
See N.T., 9/26/18, at 6-7; Written Plea Colloquy, 9/26/18, at 3
(unpaginated). These mandatory minimums were consistent with 75
Pa.C.S.A. § 3804(a)(3), which applied based only on prior offenses, and not a
refusal to submit to testing. Compare 75 Pa.C.S.A. § 3804(a) (setting forth
mandatory minimum sentences for DUI—general impairment as first, second,
or third and subsequent offenses) with id. § 3804(c) (setting forth mandatory
minimum sentence based, in relevant part, on refusals of testing).
Thus, our independent review reveals no abuse of discretion or error in
the PCRA court’s conclusions that because Birchfield had no application in
Kaplan’s case, Kaplan’s assertion that plea counsel either failed to or should
have advised him of Birchfield lacked merit. Accordingly, Kaplan’s ineffective
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third offense, could have constituted a first-degree misdemeanor based on his
refusal of a blood test. See 75 Pa.C.S.A. § 3803(b)(4) (effective October
2014 to December 2018) (stating that “[a]n individual who violates section
3802(a)(1) where the individual refused testing of blood or breath or who
violates section 3802(c) or (d) and who has one or more prior offenses offense
commits a misdemeanor of the first degree). However, the second-degree
misdemeanor grade of the offense comported with a charge of DUI as a third
offense without reference to a refusal of testing. See id. § 3803(a)(2)
(effective October 2014 to December 2018) (stating that “[a]n individual who
violates section 3802(a) and has more than one prior offense commits a
misdemeanor of the second degree”).
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assistance of counsel claim failed, and we agree with Counsel’s assessment
that there are no meritorious issues in this appeal.
Order affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/2022
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