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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MATTHEW P. MIKOTTIS :
:
Appellant : No. 1991 MDA 2016
Appeal from the Judgment of Sentence November 22, 2016
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0003289-2015
BEFORE: BOWES, OLSON, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 01, 2018
Appellant Matthew P. Mikottis appeals from the judgment of sentence
entered in the Court of Common Pleas of Cumberland County on November
22, 2016, following a guilty plea. We affirm.
On May 4, 2016, Appellant pled guilty to DUI-Highest rate of alcohol,
second offense.1 His plea arose following his involvement in a car accident
on September 30, 2015, at which time Appellant consented to a blood draw
which revealed a blood alcohol concentration level of .235, almost three (3)
times the legal limit.
On September 27, 2016, Appellant filed a motion to withdraw his
guilty plea in light of the United States Supreme Court’s decision filed on
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1 75 Pa.C.S.A. § 3802(c).
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* Former Justice specially assigned to the Superior Court.
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June 23, 2016, Birchfield v. North Dakota, ___ U.S. ____, 136 S.Ct. 2160
(2016).2 The trial court denied the motion on October 4, 2016, and on
November 22, 2016, it sentenced Appellant to a period of five years’
intermediate punishment which included a commitment to the Work Release
Program for not less than thirty (30) days nor more than ninety (90) days.
Appellant filed a timely appeal, and Appellant and the trial court have
complied with Pennsylvania Rule of Appellate Procedure 1925.
In his brief, Appellant presents the following issue for this Court’s
review:
Whether the trial court abused its discretion in denying
Appellant’s motion to withdraw his guilty plea based upon a
misinterpretation of the law?
Brief for Appellant at 6 (unnecessary capitalization omitted).
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2 In Birchfield, the Supreme Court held that the search-incident-to-arrest
exception to the warrant requirement did not justify warrantless blood
testing of individuals arrested on DUI charges. Id. at 2185. In doing so, the
Supreme Court emphasized that “motorists cannot be deemed to have
consented to a blood test on pain of committing a criminal offense.” Id. at
2186. Following that decision, this Court held the implied consent warnings
contained in the former version of the DL-26 Form, a copy of which had
been read to Appellant, were partially inaccurate. Therefore, we vacated the
suppression court’s order as well as Appellant's judgment of sentence and
remanded the matter to the trial court to reevaluate Appellant's consent in
light of the totality of the circumstances given the partial inaccuracy of the
officer's advisory. Commonwealth v. Evans, 153 A.3d 323, 331 (Pa.Super.
2017).
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In Commonwealth v. Carrasquillo, 631 Pa. 692, 115 A.3d 1284
(2015), the Pennsylvania Supreme Court held that while a trial court liberally
should allow a pre-sentence motion to withdraw a guilty plea,
there is no absolute right to withdraw a guilty plea; trial courts
have discretion in determining whether a withdrawal request will
be granted; such discretion is to be administered liberally in
favor of the accused; and any demonstration by a defendant of a
fair-and-just reason will suffice to support a grant, unless
withdrawal would work substantial prejudice to the
Commonwealth.
Carrasquillo, supra at 704, 115 A.3d at 1291-92 (footnote omitted). The
necessary inquiry “on consideration of such a withdrawal motion is whether
the accused has made some colorable demonstration, under the
circumstances, such that permitting withdrawal of the plea would promote
fairness and justice.” Id. at 706, 115 A.3d at 1292.
Herein, Appellant seeks to withdraw his plea based upon what he
deems to be the possible suppression issue created by the Birchfield
decision. Appellant asserts he had a fair and just reason to withdraw his
guilty plea in light of Birchfield because prior to that decision, “there was
no precedential basis to challenge the admissibility of his blood test results
at the time of a trial.” Brief for Appellant at 12. Appellant reasons that he
“should have the right to question the voluntariness of submitting to a blood
test based upon the U.S. Supreme Court’s Birchfield decision by being
permitted to withdraw his plea prior to sentencing.” Id. at 13.
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In Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa.Super. 2013),
this Court held “[s]ettled Pennsylvania law makes clear that by entering a
guilty plea, the defendant waives his right to challenge on direct appeal all
nonjurisdictional defects except the legality of the sentence and the validity
of the plea.” Appellant's issue does not constitute a challenge to the legality
of his sentence or to the validity of his guilty plea which he entered over a
month prior to the Birchfield decision. Significantly, Appellant did not
maintain in a pre-trial suppression motion or otherwise present any claim
that his pre-arrest blood draw and subsequent testing were performed
involuntarily without his consent or were coerced, and he nowhere now
alleges that he is innocent or that his guilty plea was entered involuntarily,
unknowingly or unintelligently.
To the contrary, in his plea colloquy, Appellant indicated that he
understood the English language and the charges against him, and he
admitted to the facts that led to those charges. Written Guilty Plea Colloquy,
5/3/16, at 2. Appellant also acknowledged that by pleading guilty, he
understood he was foregoing certain rights, including, inter alia, the
presumption of innocence, certain defenses, the right to a jury trial, and
most of his direct appeal rights. Id. Appellant affirmed that he was pleading
guilty of his own free will, that no one had forced him to plead guilty, and
that he had the right to be represented by counsel at both the guilty plea
and trial. Id. at 3. At the guilty plea hearing, Appellant stated he had
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reviewed the guilty plea form with counsel, and the trial court also informed
Appellant about the permissible ranges of sentences for each of the
convictions. N.T., 5/4/16, at 2-3.
Appellant contends that he sought to withdraw his plea prior to
sentencing because he wished to pursue a newly challengeable suppression
issue, the outcome of which is speculative. However, as the trial court
stressed “[Appellant] was well aware that his guilty plea waived his right to
file a suppression motion to challenge the admissibility of the evidence, as
evidenced by the probing plea colloquy and Appellant’s affirmation.” Trial
Court Opinion, filed 1/24/17, at 2-3 (citing N.T. Guilty Plea, 5/4/16, at 2).
Because Appellant is not disputing the validity of his plea or the legality of
his sentence, the sole claim he presents for this Court’s review is waived.
See Commonwealth 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).
In light of the foregoing, the trial court did not err when it found the
Supreme Court’s holding in Birchfield that states cannot impose criminal
penalties upon one who refused to submit to a warrantless blood test did not
create an intervening change in the law which amounts to a fair and just
reason for Appellant to withdraw his guilty plea.
Judgment of sentence affirmed.
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Judge Bowes files a Concurring Memorandum.
Judge Olson files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/01/18
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