180 A.3d 754
Pa. Super. Ct.2018Background
- On Feb. 5, 2016, Trooper Daldo suspected Jeffrey Kehr of DUI; Kehr consented to a blood draw and was charged.
- Kehr entered a negotiated guilty plea to DUI on June 20, 2016, and was sentenced the next day to six months intermediate punishment.
- Kehr did not file a pretrial suppression motion challenging the blood draw or test results.
- On June 23, 2016, the U.S. Supreme Court decided North Dakota v. Birchfield, holding warrantless blood tests cannot be justified as searches incident to arrest.
- Trial counsel filed a timely post-sentence motion (June 29, 2016) to withdraw Kehr’s plea to pursue suppression under Birchfield; the trial court denied the motion and Kehr appealed.
Issues
| Issue | Plaintiff's Argument (Kehr) | Defendant's Argument (Commonwealth / Trial Court) | Held |
|---|---|---|---|
| Whether a post-sentence plea withdrawal must be granted because Birchfield changed the law after the plea | Birchfield retroactively made his consent-invalid and thus his June 20 plea unknowing and involuntary; he should be allowed to withdraw to litigate suppression | A plea’s voluntariness is judged by circumstances at the plea colloquy; a later change in law does not by itself establish manifest injustice requiring withdrawal | Denied — change in law alone does not establish manifest injustice to warrant post-sentence withdrawal |
| Whether failure to preserve suppression issues before Birchfield entitles defendant to retroactive application | Birchfield made the evidence inadmissible; timing shouldn’t bar relief because decision came during post-sentence period | Retroactive application of new constitutional rules is limited to cases where the issue was preserved at trial; Kehr failed to preserve suppression issues | Denied — defendants who did not preserve the issue are not entitled to retroactive relief under Birchfield |
| Whether plea was involuntary because counsel advised acceptance in light of the then-pending Birchfield decision (ineffective assistance theory) | Counsel ineffectively advised plea given Birchfield’s potential impact; plea was therefore unknowing/involuntary | Allegation sounds in ineffective-assistance; voluntariness at plea must be assessed by plea colloquy; ineffective-assistance claims are typically deferred to collateral review (PCRA) | Trial court properly treated this as an ineffectiveness claim; plea withdrawal not required on that basis |
| Whether a per se rule forcing post-sentence withdrawal after favorable change in law should be adopted | Implied request for rule permitting plea withdrawal whenever law later changes favorably | Court rejects per se rule as undermining plea finality and allowing defendants to keep pleas when law later disfavors them; plea bargains allocate risk | Denied — no per se right to withdraw plea due to subsequent favorable change in law |
Key Cases Cited
- North Dakota v. Birchfield, 136 S. Ct. 2160 (U.S. 2016) (warrantless blood tests cannot be justified as search incident to arrest)
- Commonwealth v. Moyer, 171 A.3d 849 (Pa. Super. 2017) (Birchfield does not entitle defendants who failed to preserve suppression issues to retroactive relief)
- Commonwealth v. Broaden, 980 A.2d 124 (Pa. Super. 2009) (standard for post‑sentence motions to withdraw guilty pleas; manifest injustice rule)
- Commonwealth v. Hickman, 799 A.2d 136 (Pa. Super. 2002) (claims that plea was involuntary due to counsel’s advice are functional ineffective-assistance claims)
- Hill v. Lockhart, 474 U.S. 52 (U.S. 1985) (ineffective assistance standards apply to plea process)
- Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (new constitutional rules apply retroactively only when issue was preserved)
- Commonwealth v. Cabeza, 469 A.2d 146 (Pa. 1983) (retroactive application limited to cases where issue was preserved at all stages)