J. A04003/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JOHN ROBERT CARLEY, JR., : No. 1820 WDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, October 16, 2014,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0007537-2013
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND SHOGAN, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 25, 2017
This case returns to us on remand from the Pennsylvania Supreme
Court for further consideration in light of Birchfield v. North Dakota,
U.S. , 136 S.Ct. 2160 (2016). After review, we vacate and remand for
resentencing.
The underlying facts of this case were set forth in our prior Opinion
filed on June 16, 2016. Commonwealth v. Carley, 141 A.3d 1287, 1288
(Pa.Super. 2016), appeal granted, 279 WAL 2016 (Pa. Jan. 18, 2017)
(per curiam). Following a non-jury trial, appellant was found guilty of
driving under the influence (“DUI”) -- general impairment, driving while
operating privileges are suspended or revoked, and disorderly conduct. 1 On
1
75 Pa.C.S.A. § 3802(a)(1), 75 Pa.C.S.A. § 1543(b)(1.1)(i), & 18 Pa.C.S.A.
§ 5503(a)(1), respectively.
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October 16, 2014, appellant was sentenced to 18 to 36 months’
imprisonment for DUI, and a concurrent sentence of 90 days on the
summary charge of driving without a license. A sentence of no further
penalty was imposed on count 4, disorderly conduct. Appellant’s sentence
for DUI included a mandatory minimum sentence of 12 months’
imprisonment, as he had refused chemical testing and this was his 7th DUI
offense.2
Appellant filed a timely direct appeal; and on June 16, 2016, this court
affirmed the judgment of sentence, rejecting appellant’s argument that he
could not be penalized for exercising his constitutional right to refuse a
warrantless blood test. This court determined that Missouri v. McNeely,
U.S. , 133 S.Ct. 1552 (2013), upon which appellant primarily relied,
did not extend a constitutional right to refuse to consent to chemical testing.
Carley, 141 A.3d at 1290. Appellant filed a petition for allowance of appeal
with the Pennsylvania Supreme Court, which was granted on January 18,
2017, limited to the following issue as framed by appellant:
2
See 75 Pa.C.S.A. § 3803(b)(4) (“An 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 commits a misdemeanor of the first degree.”); 75 Pa.C.S.A.
§ 3804(c)(3) (“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: (3) For a third or subsequent offense, to:
(i) undergo imprisonment of not less than one year[.]”). Without a finding
that appellant refused chemical testing, he faced a mandatory minimum of
10 days’ imprisonment. 75 Pa.C.S.A. § 3804(a)(3)(i).
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When a defendant, following an arrest for DUI,
refuses to provide blood for the purposes of chemical
testing, is enhanced criminal punishment under
75 Pa.C.S. § 3803(b)(4) and 75 Pa.C.S. § 3804(c)
constitutional, when such refusal constitutes the
right to refuse a warrantless search, such right
provided by the Fourth Amendment to the
Constitution of the United States of America?
Petition for Allowance of Appeal to Pennsylvania Supreme Court, 7/15/16 at
3.
The petition was otherwise denied. This court’s order affirming
appellant’s judgment of sentence was vacated, and the case was remanded
to this court for further consideration of the issue in light of Birchfield.
We recently applied Birchfield in Commonwealth v. Giron, A.3d
, 2017 WL 410267 (Pa.Super. Jan. 31, 2017), which controls the case
sub judice. In Giron, as here, the defendant refused to provide a blood
sample and received a mandatory minimum sentence of 90 days’
imprisonment for a second offense DUI -- general impairment with refusal
pursuant to 75 Pa.C.S.A. § 3804(c)(2)(i). Id. at *3. Addressing Birchfield,
this court determined that the defendant’s sentence was illegal where he
was subject to criminal penalties for his refusal to submit to a warrantless
blood test:
Recently, the Supreme Court of the United States
held that states cannot impose criminal penalties
upon individuals who refuse to submit to a
warrantless blood test because such penalties violate
an individual's Fourth Amendment (as incorporated
into the Fourteenth Amendment) right to be free
from unreasonable searches and seizures.
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Birchfield, 136 S.Ct. at 2185-2186. After
Birchfield, this Court held that sections 3803 and
3804 impose criminal penalties upon individuals who
refuse to submit to blood tests. See
Commonwealth v. Evans, A.3d , , 2016
WL 7369120, *8 (Pa.Super. Dec. 20, 2016).
Id. at *3.
We hold 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. As Appellant was subjected to the
enhanced penalties provided by sections 3803 and
3804 for refusing to provide a blood sample, his
sentence was illegal.
Id. at *4 (footnote omitted).
As such, in line with this court’s holdings in Evans and Giron, we are
constrained to vacate appellant’s judgment of sentence and remand for
resentencing without consideration of 75 Pa.C.S.A. §§ 3803(b)(4) and
3804(c)(3).
Appellant had raised an additional issue for our review on appeal,
whether the trial court erred in admitting evidence of his refusal at trial
under 75 Pa.C.S.A. § 1547(e).3 Appellant argued that this violated his
3
(e) Refusal admissible in evidence.--In any
summary proceeding or criminal proceeding in
which the defendant is charged with a violation
of section 3802 or any other violation of this
title arising out of the same action, the fact
that the defendant refused to submit to
chemical testing as required by subsection (a)
may be introduced in evidence along with
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constitutional right to refuse a warrantless blood test, an argument that this
court rejected based on pre-Birchfield case law holding that there is no
constitutional right to refuse chemical testing under Pennsylvania’s implied
consent law. Carley, 141 A.3d at 1291. We distinguished McNeely on the
basis that here, the police did not order that a blood sample be taken from
appellant without his consent. Id. at 1290.
As stated above, the Pennsylvania Supreme Court limited allowance of
appeal to the issue of appellant’s sentence.4 The admission into evidence of
appellant’s refusal is not an issue that is before this court on remand.
Furthermore, while the Court in Birchfield held that motorists may not be
criminally punished for refusing to submit to a warrantless blood test, the
Court acknowledged that, “Our prior opinions have referred approvingly to
the general concept of implied-consent laws that impose civil penalties and
evidentiary consequences on motorists who refuse to comply. Petitioners do
not question the constitutionality of those laws, and nothing we say here
other testimony concerning the circumstances
of the refusal. No presumptions shall arise
from this evidence but it may be considered
along with other factors concerning the charge.
4
The Pennsylvania Supreme Court did not grant allowance of appeal as to
appellant’s second issue: “Where a defendant, following an arrest for DUI,
refuses to provide blood for the purposes of chemical testing, should the
Commonwealth be permitted to use said refusal, to help establish the guilt
of said defendant, when such constitutes the right to refuse a warrantless
search?” (Petition for Allowance of Appeal to Pennsylvania Supreme Court,
7/15/16 at 3.)
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should be read to cast doubt on them.” Birchfield, 136 S.Ct. at 2185,
citing McNeely, 133 S.Ct. at 1564-1566 (plurality); South Dakota v.
Neville, 459 U.S. 553, 560 (1983). See also McNeely, 133 S.Ct. at 1566
(recognizing, without condemnation, that “[M]ost States allow the motorist’s
refusal to take a BAC test to be used as evidence against him in a
subsequent criminal prosecution.” (citations omitted)); Commonwealth v.
Beshore, 916 A.2d 1128, 1141-1142 (Pa.Super. 2007) (en banc), appeal
denied, 982 A.2d 509 (Pa. 2007) (admission into evidence of defendant’s
refusal to submit to blood test not violative of defendant’s privilege against
self-incrimination (citations omitted)). Therefore, until the Pennsylvania
Supreme Court holds otherwise, we will not find 75 Pa.C.S.A. § 1547(e)
constitutionally infirm.
Judgment of sentence vacated. Remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/25/2017
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