Commonwealth v. McGarry
172 A.3d 60
Pa. Super. Ct.2017Background
- MeGarry pled guilty on July 20, 2015 to two counts of DUI (October 31 and November 30, 2014) after refusing breath tests; trial court imposed consecutive mandatory minimum terms (aggregate 3–6 years) on November 23, 2015.
- He did not file post-sentence motions or a direct appeal; judgment of sentence became final December 23, 2015.
- MeGarry filed a pro se PCRA petition (treated as his first) on May 2, 2016, raising multiple claims including plea involuntariness, ex post facto application of amended DUI statutes, a Birchfield challenge, and ineffective assistance for failure to file a direct appeal.
- The PCRA court issued a Rule 907 notice and dismissed the petition on September 26, 2016; MeGarry appealed.
- The Superior Court affirmed most of the PCRA court’s rulings but vacated and remanded solely for an evidentiary hearing on whether counsel ineffectively failed to file a requested direct appeal (which, if proved, would require reinstatement of direct-appeal rights nunc pro tunc).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Subject-matter jurisdiction / "sovereign citizen" claim | MeGarry contends he is not subject to state jurisdiction (sovereign citizen) | Commonwealth: state courts have statewide jurisdiction over Crimes Code offenses; sovereign-citizen theory is frivolous | Claim rejected; court has jurisdiction and sovereign-citizen argument is frivolous |
| Validity of guilty plea (knowing/voluntary) | Plea was unknowing/involuntary; counsel caused plea | Commonwealth: written and oral plea colloquy complied with Pa.R.Crim.P. 590 and established voluntariness and factual basis | Plea held knowing and voluntary; no manifest injustice; claim denied |
| Legality of sentence: ex post facto / Birchfield challenge | Application of 2014 DUI recidivist amendments and use of test-refusal penalty violated ex post facto and Birchfield | Commonwealth: legislature adopted amendments Oct 27, 2014 (giving fair notice); Birchfield invalidates warrantless blood draws but permits breath tests | Ex post facto claim denied (Kizak reasoning); Birchfield claim fails because MeGarry refused breath tests, not blood draws |
| Ineffective assistance for failure to file requested direct appeal | MeGarry says he requested counsel file a direct appeal and counsel failed to do so | PCRA court dismissed without holding an evidentiary hearing and made no credibility findings | Superior Court vacated denial and remanded for an evidentiary hearing solely to determine whether MeGarry requested an appeal and counsel disregarded it; if proved, reinstate direct-appeal rights nunc pro tunc |
Key Cases Cited
- Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) (warrantless blood draws invalid under Fourth Amendment; breath tests permissible)
- Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999) (failure to file requested direct appeal is per se ineffective assistance requiring relief)
- Commonwealth v. Kizak, 148 A.3d 854 (Pa. Super. 2016) (legislative adoption date can supply "fair notice" for ex post facto analysis of DUI amendments)
- Commonwealth v. Jones, 929 A.2d 205 (Pa. 2007) (jurisdictional principles; subject-matter challenges not waivable)