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holding that in order for Birchfield to apply retroactively, an appellant must preserve the issue in question at all stages of adjudication up to and including any direct appeal
Summary of this case from Commonwealth v. GastonOpinion
No. 36 MAP 2018
10-31-2019
COMMONWEALTH of Pennsylvania, Appellee v. Kirk Jacob HAYS, Appellant
OPINION
We granted allocatur in this matter to determine whether Birchfield v. North Dakota , ––– U.S. ––––, 136 S. Ct. 2160, 195 L.Ed.2d 560 (2016), applies to all cases not yet final when the decision was rendered. Integral to this determination is the extent to which issues implicated by Birchfield must have been preserved in prior proceedings.
The Court in Birchfield held that a warrantless blood test cannot be deemed valid by virtue of an implied consent law when accompanied by threat of a criminal charge for failure to consent. Birchfield , 136 S.Ct. at 2186. This Court has held that the analysis in Birchfield applied equally to Pennsylvania's imposition of enhanced penalties for any conviction on the underlying driving under the influence (DUI) charge, based on a defendant's refusal to consent to a blood test. Commonwealth v. Monarch , ––– Pa. ––––, 200 A.3d 51, 57 (2019).
The underlying facts of this case follow. On April 11, 2014, Pennsylvania State Police Troopers Adam Kirk and Ryan Golla conducted a traffic stop after observing Appellant fail to use his right turn signal and then twice cross over the white fog lines on the roadway. Upon interaction with Appellant, Trooper Kirk smelled alcohol and suspected Appellant was driving under the influence of alcohol. Following two failed field sobriety tests, Appellant was taken into custody and transported to the Williamsport DUI Center. At the DUI Center, Matthew McCormick, an officer with the Old Lycoming Police Department, read Appellant the Pennsylvania Department of Transportation's DL-26 form, and Appellant agreed to submit to a blood alcohol content (BAC) test and acquiesced to a blood draw. The sample of Appellant's blood was taken and submitted for chemical testing, which showed Appellant's BAC to be 0.192. Appellant was charged with three summary offenses and two counts of DUI: Count 1, general impairment pursuant to 75 Pa.C.S. § 3802(a)(1), and Count 2, driving under the influence, highest rate of alcohol, 75 Pa.C.S. § 3802(c).
The DL-26 form gives a motorist notice of a police officer's request for chemical testing, including the type of testing and the consequences for refusing to submit to the requested test. The DL-26 form included the warning that if Appellant refused to submit to chemical testing, and was subsequently convicted of DUI pursuant to Section 3802(a), he would be subject to increased penalties equivalent to those imposed for conviction of driving with the highest rate of alcohol. The DL-26 form has subsequently been replaced by a warning compliant with Birchfield .
The three summary offenses were 75 Pa.C.S. § 3309(1), disregarding traffic lane; 75 Pa.C.S. § 3814(a), careless driving; and 75 Pa.C.S. § 3334(a), failure to give an appropriate signal.
On January 21, 2015, Appellant filed an omnibus pre-trial motion to suppress all evidence resulting from the traffic stop. Omnibus Pre-trial Motion, 1/21/15, at 1. Appellant averred Trooper Kirk lacked probable cause to stop his vehicle. As a consequence, Appellant argued that all blood tests, field sobriety tests, portable breath tests, statements of all police officers witnessing the traffic stop, and all statements by Appellant resulting from the illegal stop should be suppressed. Id. at 4. Appellant did not contend his consent to the blood draw at the Williamsport DUI Center was coerced. A hearing was held, and on May 26, 2015, the trial court denied Appellant's motion.
Appellant's jury trial was held on June 22, 2016. Pertinent to our analysis, we note that, during deliberations, the jury submitted a written question asking "can blood alcohol level on Count 2 be used to determine the second part of Count 1?" N.T., 6/22/16, at 128. The court called the jury back into the courtroom and informed the jury that "[g]enerally the answer is yes. By part two, I assume that you meant proving that they drove while in control of the vehicle when they weren't incapable [sic] of safe driving." Id. at 129. The jury found Appellant guilty of both counts of DUI, and the trial court found Appellant guilty of the summary offense of failing to give an appropriate signal, but not guilty of the remaining two summary counts. Sentencing was deferred pending a drug and alcohol assessment. On June 23, 2016, the day after Appellant's trial concluded, the United States Supreme Court decided Birchfield .
The trial court held Appellant's sentencing hearing on August 23, 2016. At sentencing, the following exchange took place.
[The Court]: Have you and the DA's office conferred at all about the situation? I mean, I would propose to go ahead and sentence under the Count 1 and - -
[Defense Counsel]: That is - -
[The Court]: Count 2 goes by the waste side [sic], is the long and short - -
[Defense Counsel]: That's the agreement we reached, yes.
...
[Defense Counsel]: I intend on asking for bail pending appeal. I don't know if Your Honor wants to set a report date and file a paper motion or if Your Honor would like to address that now. The issues would be, one, the suppression ruling, and then two, in light of Birchfield , while it makes the BAC count go away, I think it creates a weight issue as to the general impairment charge and especially because I think the jury came back with a question twice can they
consider the blood alcohol content in determining - -
[The Court]: They do and I do recall.
N.T., 8/23/16, at 2, 5. Accordingly, the trial court sentenced Appellant only on Count 1, DUI: general impairment and the summary offense. Appellant received a sentence of five days to six months' incarceration, plus fines, fees, community service, counseling, and alcohol highway safety driving school.
Appellant filed a post-sentence motion on September 1, 2016, alleging he was entitled to a new trial because Birchfield held "that motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense." Post-Sentence Motion, 9/1/16, at ¶ 8 (quoting Birchfield , 136 S. Ct. at 2186 ). Appellant noted that Birchfield included a consolidated case of Beylund v. Grant Levi, Dir., North Dakota Dept. of Trans. In that case, the Supreme Court remanded the matter for a new trial, holding, "[b]ecause voluntariness of consent to a search must be ‘determined from the totality of all the circumstances,’ we leave it to the state court on remand to reevaluate Beylund's consent given the inaccuracy of the officer's advisory." Post-Sentence Motion, 9/1/16, at ¶ 10 (citing Birchfield , 136 S. Ct. at 2186 ). Appellant further noted that because his trial was held on June 22, 2016, and Birchfield was not decided until June 23, 2016, defense counsel could not have raised a challenge premised on the holding of Birchfield prior to trial. Finally, Appellant raised the claim he noted at sentencing, that the verdict was against the weight of the evidence because the jury based its finding of guilt on Count 1 on the inadmissible BAC evidence.
The Commonwealth filed an answer, asserting Appellant waived any challenge to the voluntariness of his consent by failing to raise the issue in his omnibus pre-trial motion. The Commonwealth conceded Appellant's case was not yet final when Birchfield was decided and that Appellant first raised his Birchfield issue in his timely filed post-sentence motion. However, the Commonwealth argued that retroactivity only applies in cases where the question is properly preserved at all stages. Commonwealth's Answer, 10/4/16, at ¶ 6 (citing Commonwealth v. Cabeza , 503 Pa. 228, 469 A.2d 146, 148 (1983) ("[W]here an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal.")).
The record reveals Appellant first raised the Birchfield issue at sentencing prior to filing a post-sentence motion.
On October 14, 2016, the trial court granted Appellant's post-sentence motion and awarded Appellant a new trial. In granting Appellant's motion, the trial court noted its disagreement with the Commonwealth's assertion that Cabeza should apply, concluding Cabeza "was not a constitutional case or a case of constitutional rights." Trial Court Order, 10/31/16, at 1. Rather, the trial court found persuasive Commonwealth v. Marshall , 824 A.2d 323 (Pa. Super. 2003), which "held that inadmissible preliminary breath tests prejudiced the defendant in a general impairment case and the Superior Court ordered a new trial." Trial Court Order, 10/31/16, at 1-2. Accordingly, the trial court found that Appellant was "similarly prejudiced by the unconstitutional BAC evidence in this case and a new trial is therefore required." Id. at 2.
The Commonwealth timely appealed, averring (1) the trial court erred in granting Appellant's post-sentence motion because Appellant failed to properly preserve the suppression claim in a pre-trial motion, and (2) Birchfield created a new constitutional right, as opposed to a new constitutional rule. In its Rule 1925(a) opinion, the trial court suggested that the Commonwealth, and not Appellant, had waived the preservation issue when the Commonwealth agreed at sentencing that no sentence should be imposed on Count 2 in light of Birchfield . Trial Court Opinion, 1/19/17, at 5.
In a unanimous unpublished decision, a three-judge panel of the Superior Court vacated and reversed. Commonwealth v. Hays , No. 1787 MDA 2016, 2018 WL 481895 (Pa. Super. Jan. 19, 2018) (unpublished memorandum). The court held that because Appellant "did not raise any claim at, or before, trial that his consent to the blood draw was involuntary, the trial court erred in granting [Appellant]'s post-sentence motion." Id. at 5-6. The court cited its prior decision in Commonwealth v. Moyer , 171 A.3d 849 (Pa. Super. 2017), wherein it affirmed a trial court order denying a post-sentence motion to vacate and remand for a new trial on the basis Moyer's claim was waived for failure to preserve it pursuant to Cabeza . Id. at 6. Appellant had argued a new trial was warranted because his consent was involuntary under Birchfield . Id. The Moyer court held "[i]n Pennsylvania, it has long been the rule that criminal defendants are not entitled to retroactive application of a new constitutional rule unless they raise and preserve the issue during trial." Id. at 7 (citing Moyer , 171 A.3d at 855 ). Accordingly, in the instant case, the Superior Court held, because Appellant failed to challenge his consent to the warrantless blood draw at any stage of the litigation prior to his post-sentence motion, he was not entitled to retroactive application of Birchfield . Id. at 7.
Based on its finding of waiver, the Superior Court did not address the Commonwealth's argument that Birchfield created a new constitutional right as opposed to a new constitutional rule.
In this appeal, Appellant continues to pursue the underlying claim, and argues that Birchfield should apply to all cases that were not yet final when Birchfield was decided. Concisely, Appellant argues that his judgment of sentence is not yet final, Birchfield created a new rule, and he is entitled to the benefit of that rule. Appellant's Brief at 18. Appellant argues, "[i]n Pennsylvania, ‘[u]nder the Teague [v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) ] framework, an old rule applies both on direct and collateral review, but a new rule is generally applicable only to cases that are still on direct review.’ " Id. at 9 (quoting Commonwealth v. Olson , 179 A.3d 1134, 1139 (Pa. Super. 2018) ). Further, "[w]hile retroactive application of a new rule of law is a matter of judicial discretion usually exercised on a case-by-case basis, the general rule is that the decision announcing a new rule of law is applied retroactively so that a party whose case is pending on direct appeal is entitled to the benefit of the changes in the law." Id. (quoting In re L.J. , 622 Pa. 126, 79 A.3d 1073, 1087 (2013) ). Following this framework, Appellant argues that under Birchfield 's pronouncement of a new constitutional rule, his consent to submit to a blood draw was involuntary, and he raised that issue at his first opportunity, here, prior to sentencing.
"Under the Teague line of cases, a new rule of constitutional law is generally retrospectively applicable only to cases pending on direct appellate review.... In other cases, retroactive effect is accorded only to rules deemed substantive in character, and to ‘watershed rules of criminal procedure’ which ‘alter our understanding of the bedrock procedural elements’ of the adjudicatory process." Commonwealth v. Washington , 636 Pa. 301, 142 A.3d 810, 813 (2016) (quoting, Teague , 489 U.S. at 311, 109 S.Ct. 1060 (citations omitted)).
Appellant does not, however, address Pennsylvania's issue preclusion principle as articulated by Cabeza and its progeny which formed the basis of the Superior Court's holding. Rather, Appellant focuses his argument solely on the aforementioned substantive question of retroactivity to cases pending on direct appeal asserting that he "did not have the legal authority available to stand on to raise the issue of voluntariness of his consent to the blood draw prior to Birchfield ." Appellant's Brief at 12.
The Commonwealth responds by asserting that in Pennsylvania, "it has ‘long been the rule that criminal defendants are not entitled to retroactive application of a new constitutional rule unless they raise and preserve the issue during trial.’ " Commonwealth's Brief at 14 (quoting Moyer , 171 A.3d at 855 (internal citation omitted)). More specifically, the Commonwealth notes that when "an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal." Id. (quoting Commonwealth v. Newman , 99 A.3d 86 (Pa. Super. 2014) (citing Cabeza , 469 A.2d at 148 )). The Commonwealth then cites Moyer , which involved a defendant sentenced two days prior to Birchfield , after which the defendant filed a post-sentence motion arguing Birchfield should apply. The Superior Court held that, although Birchfield applied retroactively, it did not apply to Moyer because she did not properly preserve the issue and failed to raise it prior to her post-sentence motion. Analogizing Appellant's case to Moyer , the Commonwealth urges this Court to affirm the Superior Court.
The Defender Association of Philadelphia, in an amicus brief, advances an argument on what it refers to as the unencumbered question of retroactivity of a United States Supreme Court federal constitutional decision to Pennsylvania cases not yet final, essentially putting aside the procedural issues in this particular case. Amicus asserts "[t]here is no question that Birchfield - a United States Supreme Court decision articulating a new federal constitutional rule - has retroactive application to cases not yet final when Birchfield was decided." Amicus Brief at 17. Amicus then notes, the "Federal law does not speak to Pennsylvania procedural requirements necessary to avoid forfeiture of such a claim[,]" and urges this Court to adopt a rule that does not require preservation at trial prior to the pronouncement of the new rule. Id.
This Court granted review to determine whether Birchfield should apply to all cases not yet final when the decision was rendered. As evidenced by the parties' arguments, our inquiry must first determine whether the issue must be preserved at all stages in the lower courts. Taking the facts as they are, both parties agreed at the time of sentencing that Birchfield should apply in this case, illustrated by the fact that at sentencing Birchfield was applied to Count 2 and no sentence was imposed. Now, each party asserts the other has waived any challenge by failing to preserve the issue in the lower courts as it relates to Count 1. Appellant claims that the Commonwealth has waived any challenge by its admission at the time of sentencing that Birchfield applied despite Appellant's failure to raise the claim earlier. Conversely, the Commonwealth maintains that Appellant's failure to preserve his claim at all stages of adjudication should result in waiver.
Prior to addressing the merits of Appellant's retroactivity claim, our review necessarily begins with a discussion of Cabeza , the seminal case relied on by the Superior Court here and in Moyer . In Cabeza , this Court was asked to determine whether a rule it announced in Commonwealth v. Scott , 496 Pa. 188, 436 A.2d 607, 611 (1981), applied to Cabeza's case which was pending on appeal at the time the decision in Scott was rendered. The Cabeza Court noted, "[i]n Scott we rejected the rule that allowed a prosecutor to cross-examine character witnesses as to mere arrests of the accused." Cabeza , 469 A.2d at 147. The Court went on to note, "[i]n both [ Cabeza and Scott ], a defense challenge to the ruling was raised during trial and the issue preserved and argued in post trial motions and on appeal. The only noteworthy difference between Scott and [ Cabeza ] is that Scott was argued and decided first." Id. at 148. The Court noted that Cabeza could just as easily have been the case that overruled the prior law if Scott had not been decided first. Therefore, because the two appellants were similarly situated, this Court concluded that where "an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal." Id.
"[T]he appellate court must give retroactive effect [to a new rule] ..., subject, of course, to established principles of waiver, harmless error, and the like." Commonwealth v. Gillespie , 512 Pa. 349, 516 A.2d 1180, 1183 (1986) (citing Shea v. Louisiana , 470 U.S. 51, 58 n.4, 105 S.Ct. 1065, 84 L.Ed.2d 38 (1985) ).
Despite the Superior Court's reliance on the holding of Cabeza , Appellant declined to address Cabeza , or argue that its holding should not apply in the instant matter. Likewise, the Defender Association of Philadelphia seems to acknowledge Cabeza 's applicability but argues under its holding "very few litigants will see relief." Amicus Brief at 17. Amicus urges this Court to adopt the view of a concurring opinion in Commonwealth v. Napold , 170 A.3d 1165 (Pa. Super. 2017), which acknowledged Cabeza controlled but advocated for a new rule which would "consider an issue preserved when it is raised in a timely fashion after the creation of the new rule on which it is grounded." Id. at 1170 (emphasis in original).
While this invitation has some appeal, Appellant has failed to argue or persuade this Court that Cabeza should be overruled, and this Court declines to revisit this well-established law at this time. Instantly, Appellant failed to assert at or before trial that his consent was coerced. In Cabeza , Cabeza took the same steps Scott did to preserve his issue for appellate review. Likewise, Appellant could have taken the steps Beylund took to preserve his challenge at all phases of litigation, and thus would have been similarly situated. Appellant is not entitled to retroactive application of Birchfield based on his failure to preserve the issue below. See Cabeza , 469 A.2d at 148 ("where an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal .") (emphasis added); see also Commonwealth v. Sneed , 587 Pa. 318, 899 A.2d 1067, 1076 (2006) ("[i]t is well-settled that in order for a new rule of law to apply retroactively to a case pending on direct appeal, the issue had to be preserved at all stages of adjudication, including at trial and on direct appeal."); Commonwealth v. Tilley , 566 Pa. 312, 780 A.2d 649, 652 (2001) ("[c]ase law is clear, however, that in order for a new rule of law to apply retroactively to a case pending on direct appeal, the issue had to be preserved at "all stages of adjudication up to and including the direct appeal.")
Accordingly, we affirm the opinion of the Superior Court.
Chief Justice Saylor and Justices Baer and Dougherty join the opinion.
Chief Justice Saylor files a concurring opinion.
Justice Donohue files a dissenting opinion in which Justices Todd and Wecht join.
CHIEF JUSTICE SAYLOR, Concurring
Consistent with the majority opinion, the Supreme Court of the United States has specified that federal retroactivity analysis does not preclude "reviewing courts [from] apply[ing] ordinary prudential doctrines, determining, for example, whether the issue was raised below or whether it fails the ‘plain error’ test." United States v. Booker , 543 U.S. 220, 268, 125 S. Ct. 738, 769, 160 L.Ed.2d 621 (2005) ; see also Shea v. Louisiana , 470 U.S. 51, 58 n. 4, 105 S. Ct. 1065, 1069 n.4, 84 L.Ed.2d 38 (1985) (explaining that the retroactive application of a new rule to cases pending on direct review is "subject, of course, to established principles of waiver, harmless error, and the like"). Accordingly, this case calls for a policy judgment at the state level -- independent from Teague retroactivity analysis -- concerning issue preservation. Accord State v. Robinson , 171 Wash.2d 292, 253 P.3d 84, 89 (2011) ("Issue preservation and retroactivity are distinct doctrines.").
Significantly, over the last several decades, this Court has generally applied waiver rules that are stricter than those that pertain in many other jurisdictions. For example, the Court has abrogated the plain error doctrine in Pennsylvania, see Commonwealth v. Clair , 458 Pa. 418, 423, 326 A.2d 272, 274 (1974), although that construct continues to prevail in many other courts. In this line of cases, this Court has stressed the institutional interests at stake, including avoiding a substantial erosion in finality and promoting efficient judicial administration, as well as extending fairness to other parties in litigation. See id. at 421-22, 326 A.2d at 273-74.
Thus, the plain error doctrine is not presently available as a means of securing judicial review of Appellant's Birchfield challenge. Cf. State v. Vargas , 404 P.3d 416, 420-21 (N.M. 2017) (reflecting an exercise of judicial discretion to apply the fundamental error doctrine, which does pertain in New Mexico, to reach an otherwise waived Birchfield claim). And, from my point of view, the Court should not proceed to weaken the otherwise prevailing practice on the strength of advocacy, such as the present presentation by Appellant, which makes no attempt to take all relevant interests into account.
In terms of Appellant's argument centered upon fairness to him, I find that his strongest point lies in the argument that he was precluded from raising a Birchfield -type challenge before the trial court, prior to Birchfield's issuance, by the prevailing Superior Court precedent holding that there was no constitutional right to refuse blood alcohol testing. See Brief for Appellant at 12 (citing Commonwealth v. Carley , 141 A.3d 1287, 1290 (Pa. Super. 2016), and Commonwealth v. Beshore , 916 A.2d 1128, 1141-42 (Pa. Super. 2007) (en banc )). Nevertheless, and again in contrast to other jurisdictions applying more liberal waiver precepts, this Court has declined to implement a futility doctrine that would relieve litigants of the requirement to advance objections and challenges at the earliest opportunity on account of prior precedent. See Schmidt v. Boardman Co. , 608 Pa. 327, 355, 11 A.3d 924, 941 (2011) (majority decision, in relevant part).
In an appropriate case, I would be receptive to considering a moderate adjustment to our approach to futility, in cases involving the retroactive application of a new constitutional rule, along the lines of that adopted by the Supreme Court of Washington. That court has explained as follows:
We recognize ... that in a narrow class of cases, insistence on issue preservation would be counterproductive to the goal of judicial efficiency. Accordingly, we hold that principles of issue preservation do not apply where the following four conditions are met: (1) a court issues a new controlling constitutional interpretation material to the defendant's case, (2) that interpretation overrules an existing controlling interpretation, (3) the new interpretation applies retroactively to the defendant, and (4) the defendant's trial was completed prior to the new interpretation. A contrary rule would reward the criminal defendant bringing a meritless motion to suppress evidence that is clearly barred by binding precedent while punishing the criminal defendant who, in reliance on that binding precedent, declined to bring the meritless motion. The logical result would be the creation of a perverse incentive for criminal defendants to make "a long and virtually useless laundry list of objections to rulings that were plainly supported by existing precedent."
Robinson , 253 P.3d at 89 (quoting Johnson v. U.S. , 520 U.S. 461, 468, 117 S. Ct. 1544, 1549, 137 L.Ed.2d 718 (1997) ). However, I believe it would be too greatly incongruous with the existing practice, including the general rejection of a futility rationale to excuse non-preservation of issues, to extend this modification beyond the overruling of previous precedent that had been established by a court of last resort, i.e. , the Supreme Court of the United States or this Court.
Because I conclude that this case does not concern the overruling of a previous decision by a court of last resort, I support the majority's holding that ordinary principles of issue preservation control. In this regard, I respectfully differ with Justice Donohue's position to the extent that she is suggesting that previous cases by this Court contravene the essential position of Birchfield that the physical intrusiveness of blood testing implicates heightened Fourth Amendment protection. Rather, I do not see that such an issue was raised in any of these cases. To the extent that the Court has discussed the constitutionality of the Implied Consent Law upon the resolution of other discrete challenges, constitutional or otherwise, I do not apprehend how this would have been deemed to foreclose timely pursuit, by Appellant, of the relevant one.
Finally, I recognize the tension between requiring preservation of issues that have been resolved by the intermediate courts and unsettled questions to secure relief and rejecting claims of deficient stewardship based on counsel's failure to do so. See Dissenting Opinion, at 1272–73. Candidly, similar fairness questions are implicated by the Court's continuing adherence to its rejection of a plain error rule. Thus, such rejection is clearly premised on a balance of the competing interests involved, which is in conformity with my approach here. Moreover, some decisions of this Court, at least, consistent with my own personal perspective, evince a greater degree of circumspection relative to the ineffectiveness dynamic. See, e.g. , Commonwealth v. Hughes , 581 Pa. 274, 331, 865 A.2d 761, 795 (2004) ("Other courts also distinguish scenarios involving failure to anticipate a change in the law from the failure to pursue readily available arguments relative to unsettled law.").
JUSTICE DONOHUE, Dissenting
I disagree with the learned Majority that Hays' failure to challenge our prior decision in Commonwealth v. Cabeza , 503 Pa. 228, 469 A.2d 146 (1983), requires a finding that he is not entitled to benefit from the United States Supreme Court's decision in Birchfield v. North Dakota , ––– U.S. ––––, 136 S. Ct. 2160, 195 L.Ed.2d 560 (2016). Based on my research and the case law relied upon by Hays, he was under no obligation to preserve his objection to the warrantless blood draw. I therefore would conclude that Birchfield applies retroactively to cases pending on direct appeal at the time of the decision regardless of preservation.
As the United States Supreme Court has recognized, judicial decisions have had retroactive application "for near a thousand years." Harper v. Virginia Dep't of Taxation , 509 U.S. 86, 94, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993) (quoting Kuhn v. Fairmont Coal Co. , 215 U.S. 349, 372, 30 S.Ct. 140, 54 L.Ed. 228 (1910) (Holmes, J., dissenting)). In Griffith v. Kentucky , 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), the Court made clear that this general rule of retroactivity was without limits, holding that "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final[.]" Id. at 328, 107 S.Ct. 708. See also Davis v. United States , 564 U.S. 229, 243, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) ( Griffith 's rule of retroactivity applies to all cases on direct review "with no exception").
In some cases, the United States Supreme Court left it to the states to determine whether the failure to preserve an issue in a lower court served as a barrier to applying a new federal constitutional rule on direct appeal. See, e.g. , United States v. Booker , 543 U.S. 220, 268, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (new rule announced in Blakely v. Washington , 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), can be waived for failure to raise the claim below); Shea v. Louisiana , 470 U.S. 51, 59 n.4, 105 S.Ct. 1065, 84 L.Ed.2d 38 (1985) (same, as to the new rule announced in Edwards v. Arizona , 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) ). In O'Connor v. Ohio , 385 U.S. 92, 87 S.Ct. 252, 17 L.Ed.2d 189 (1966) (per curiam), however, the Court reversed the Ohio Supreme Court's finding that the appellant was not entitled to benefit from the new rule announced in Griffin v. California , 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), based on his failure to raise the claim in the courts below. The O'Connor Court observed that both the State and the defendant had relied on the former decisions that Griffin overruled, and that "[d]efendants can be no more charged with anticipating the Griffin decision than can the States." O'Connor , 385 U.S. at 93, 87 S.Ct. 252. Therefore, the Court held that the appellant's "failure to object to a practice which Ohio had long allowed cannot strip him of his right to attack the practice following its invalidation by this Court." Id.
The Court in Griffin held that commentary on a defendant's decision not to testify violated the Fifth Amendment. Griffin , 380 U.S. at 614, 85 S.Ct. 1229.
In Cabeza , this Court, in reliance on our prior decision of August v. Stasak , 492 Pa. 550, 424 A.2d 1328 (1981), held that "where an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal." Cabeza , 469 A.2d at 148. But this Court has also held that the failure to preserve an issue in a lower court does not result in waiver of a new rule of law for cases pending on direct appeal at the time of the announcement of the new rule. In Kuchinic v. McCrory , 422 Pa. 620, 222 A.2d 897 (1966), this Court held that the new rule announced in Griffith v. United Airlines , 416 Pa. 1, 203 A.2d 796 (1964) (abandoning the rule that the place of the tort was controlling for choice of law cases), applied even though the issue had not been raised in the courts below. Kuchinic , 222 A.2d at 901. The Court thoroughly explained the reason for its conclusion:
The effective administration of justice ordinarily requires that a litigant who fails to raise at trial an available objection waives it on appeal. This Court is reluctant to permit a party to allege error in the jury charge for the first time on appeal, because it would be manifestly unfair to permit a party to take his chances on a verdict, and then complain if he loses, when an earlier objection would have afforded the trial court an opportunity to correct the error. The present case, of course, is one where an earlier objection would have been to no avail, because the charge correctly stated prevailing law. Furthermore, the rule espoused by appellee [ (requiring preservation of the issue to be entitled to application of the new rule on appeal) ] would compel counsel to urge upon the trial court every conceivable theory, on the mere chance that, before his case is finally concluded, one such theory might become the law. Since, by hypothesis, the trial court would have to overrule any objection based on his failure to adopt one of these theories, on appeal, the winning party below would be in the same position as the instant appellee. Indeed this requirement would tend to delay justice, for the court below would still have to consider and rule on each theory. Therefore, we are unwilling to conclude that the appellants' failure to interject the rationale of Griffith into the trial constitutes a waiver and precludes them from now seeking the benefit of that decision.
Id. (internal citations and footnotes omitted). The Kuchinic Court observed, "Since appellants had no knowledge of their right to have this case tried under Pennsylvania law, they could not be deemed to have waived that right." Id. at 901 n.9 (citing Linda Coal & Supply Co. v. Tasa Coal Co. , 416 Pa. 97, 204 A.2d 451, 453 (1964) ).
After our decision in Cabeza , we have relied on Kuchinic for the proposition that the failure to preserve a claim in a court below does not preclude application of a new rule of law on appeal. In Cleveland v. Johns-Manville Corp. , 547 Pa. 402, 690 A.2d 1146 (1997), we held, relying on Kuchinic , that "where a fundamental change in the law occurs after the lower court enters its order, but before the appellate court rules, the failure to raise the issue in the lower court will not preclude appellate review of that issue." Id. at 1151. This Court has likewise relied upon O'Connor to find that there is no preservation requirement for a new rule of law announced during the pendency of the defendant's direct appeal. In Commonwealth v. Clark , 439 Pa. 192, 266 A.2d 741 (1970), for example, we cited O'Connor to support our decision that a defendant did not waive his speedy trial argument by failing to raise it below "since the law at the time of his trial did not entitle him to the relief he now seeks." Id. at 743-44. See also Commonwealth v. Cheeks , 429 Pa. 89, 239 A.2d 793, 796 (1968) (relying on O'Connor to find that the failure to object at trial did not result in waiver as the basis for objection was decided a year later; "[i]t would be manifestly unfair to hold appellant to a waiver when this waiver is alleged to have occurred at a time when neither the defendant nor his attorney had any way of knowing that there existed a right to be waived"); Commonwealth v. Baity , 428 Pa. 306, 237 A.2d 172, 179 (1968) (same).
In his brief before this Court, Hays asserts that the law in Pennsylvania at the time of his trial was "that there was no constitutional right to refuse blood alcohol testing." Hays' Brief at 12 (citing Commonwealth v. Beshore , 916 A.2d 1128 (Pa. Super. 2007) (en banc) (relying on case law from this Court to conclude that "under our Implied Consent Law, there is ‘no constitutional right to refuse chemical testing’ "); Commonwealth v. Carley , 141 A.3d 1287 (Pa. Super. 2016) (same, relying on Beshore ), rev'd in part pursuant to Birchfield , 641 Pa. 28, 165 A.3d 879 (Pa. 2017) ). Hays asserts that because of this existing case law, he had no "legal basis to object or raise the voluntariness of his consent until Birchfield was decided," as "[t]he prevailing case law at the time clearly held that individuals did not have a constitutional right to refuse blood alcohol testing." Id. at 12-13. Relying on O'Connor 's progeny, Hays asserts that under these circumstances, he cannot be found to have waived his Fourth Amendment claim. Id. at 14 (quoting Cheeks , 239 A.2d at 796 ).
The O'Connor / Kuchinic line of cases irreconcilably conflict with Cabeza line of cases. Notably, no case from this Court discusses the two lines of cases or has attempted to distinguish them, nor did Cabeza overrule Kuchinic . Indeed, the Cabeza Court did not so much as mention Kuchinic , and Cleveland did not acknowledge the existence of Cabeza . In my view, we must resolve this conflict. There is ample support for allowing a criminal defendant to benefit from a new rule of law announced while his or her case is pending on direct appeal, regardless of whether the defendant raised the claim prior to the issuance of the new decision. First and foremost, by refusing to allow all defendants to benefit from a new rule of law on direct appeal, we are violating the foundational basis for the Griffith Court's decision. In reaching its conclusion that a new rule pertaining to criminal prosecutions is retroactive to all cases pending on direct appeal, the Court observed that "selective application of new rules violates the principle of treating similarly situated defendants the same." Griffith , 479 U.S. at 323, 107 S.Ct. 708 (citation omitted). It continued, stating, "[The] failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication." Id. at 322, 107 S.Ct. 708. Additionally, relying on Justice Harlan's concurring opinion in Mackey v. United States , 401 U.S. 667, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971), the Griffith Court reasoned:
The Majority cites to two cases that reiterated Cabeza 's holding, Commonwealth v. Sneed , 587 Pa. 318, 899 A.2d 1067 (2006), and Commonwealth v. Tilley , 566 Pa. 312, 780 A.2d 649 (2001). See Majority Op. at 1266–67. In both Sneed and Tilley , the Court cited to Cabeza for the proposition that because the defendant failed to raise a challenge at trial or on direct appeal to the issues subsequently decided in their favor during the pendency of their direct appeal by the United States Supreme Court, they were not entitled to their retroactive application on collateral review. Sneed , 899 A.2d at 1075 ; Tilley , 780 A.2d at 652. As both Sneed and Tilley are appeals in PCRA matters, not direct appeals, they are of limited value, as these cases involve final judgments, brought decades after the rule they attempt to rely on was announced. Moreover, the question of retroactivity of a new case in the collateral context presents an entirely different set of considerations. See Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). In fact, in Teague , the United States Supreme Court recognized the general rule of retroactivity of new case law on direct appeal. Id. at 304-05, 109 S.Ct. 1060. Thus, Sneed and Tilley do not cabin our ability to apply Birchfield retroactively to Hays on direct appeal, despite his failure to preserve the objection before the trial court.
Although the Majority is correct that Hays does not cite to Cabeza or advocate for its overruling, he does cite to the O'Connor line of cases in support of his claim that he is entitled to retroactive application of Birchfield . As this Court has neither recognized nor distinguished between the two lines of cases in the past, I disagree with the Majority that Hays is not entitled to relief on this basis. See Majority Op. at 1266. Further, for the reasons stated throughout this Dissent, I also disagree with the Majority that Cabeza is the "well-established law" applicable in this case. Id.
If we do not resolve all cases before us on direct review in light of our best understanding of governing constitutional principles, it is difficult to see why we should so adjudicate any case at all.... In truth, the Court's assertion of power to disregard current law in adjudicating cases before us that have not already run the full course of appellate review, is quite simply an assertion that our constitutional function is not one of adjudication but in effect of legislation.
Griffith , 479 U.S. at 323, 107 S.Ct. 708 (quoting Mackey , 401 U.S. at 679, 91 S.Ct. 1160 (Harlan, J., concurring)).
Second, there is no need for a retroactivity discussion for a defendant that preserved the issue which was subsequently decided favorably in another case while on direct appeal. The same legal basis for granting relief in the case that announced a new rule of law would likewise be applicable to this defendant's case. As aptly stated by the Cabeza Court, "The only noteworthy difference between [ Commonwealth v. Scott , 496 Pa. 188, 436 A.2d 607 (1981) ] and [ Cabeza ] is that Scott was argued and decided first. [ Cabeza ] may well have been the case which overruled prior law if Scott had not been decided [first]." Cabeza , 469 A.2d at 148. In other words, even if Scott did not apply retroactively, Cabeza would have been entitled to relief on the same basis in his own right, having raised and preserved the issue below.
Further, and perhaps most significantly, by ruling that a defendant who does not preserve the issue cannot benefit from a new rule decided while his or her case is on direct review, we are foreclosing that defendant from obtaining any relief on a basis that our courts have now found to be error. The law in Pennsylvania is clear that "counsel cannot be deemed ineffective for failing to predict changes in the law." Commonwealth v. Cousar , 638 Pa. 171, 154 A.3d 287, 303 (2017) (citing cases). Thus, counsel who fails to preserve an issue that is subsequently decided in her client's favor is not ineffective for failing to raise it below, and the defendant is not entitled to collateral relief on that basis. It seems incongruous to require trial counsel to be so prophetic as to predict changes in the law in order for her client to be entitled to benefit from a new rule, but then find that she is not ineffective for failing to do so. In my view, the law cannot both deprive a defendant of a new rule of law announced during the pendency of direct review because counsel waived its application by failing to object and also find that counsel is not ineffective for failing to preserve the issue. This completely closes the courtroom door to a defendant, and there is no other area of the law that removes any avenue for relief for a criminal defendant.
Moreover, the case at bar mirrors the concerns raised in O'Connor , Kuchinic and their progeny. At the time of Hays' trial, the law provided that a driver who refused to submit to a requested blood test would be criminally punished for his refusal. See 75 Pa.C.S. § 1547(b)(1), (2) (effective July 10, 2006 - May 24, 2016). This was based on Pennsylvania's implied consent laws applicable to all drivers. See id. § 1547(a). Under this prior version of the statute, police simply needed to inform a driver of the consequences of refusing a blood alcohol test; where a driver was so informed, the consent given for the blood alcohol test was valid. See Pa. Dept. of Transp., Bureau of Driver Licensing v. Weaver , 590 Pa. 188, 912 A.2d 259, 264-65 (2006).
If the driver refused to submit to chemical testing and was ultimately convicted under 75 Pa.C.S. § 3802(a)(1) (DUI – general impairment, incapable of safely driving), he would be subjected to a loss of driving privileges and the enhanced penalty provisions applicable to an individual convicted of DUI – highest rate of alcohol (id. §§ 3802(c), 3804(c) ). Id. § 1547(b)(1), (2). The penalties imposed pursuant to section 3804(c) range from "imprisonment of not less than 72 consecutive hours" and "a fine of not less than $1,000 nor more than $5,000" for a first offense to "imprisonment of not less than one year" and "a fine of not less than $2,500" for an offender convicted of a third or subsequent offense. 75 Pa.C.S. § 3804(c).
Following Birchfield , the General Assembly amended section 1547 to remove the enhanced criminal sentencing penalties associated with a refusal to submit to a warrantless blood test. See generally 75 Pa.C.S. § 1547 (effective January 20, 2018).
Prior to Birchfield , this Court had held that a warrant was not required for a blood draw where police had probable cause to suspect that an individual was driving under the influence of alcohol or a controlled substance. In Commonwealth v. Kohl , 532 Pa. 152, 615 A.2d 308 (1992), this Court held that under Article I, Section 8 of the Pennsylvania Constitution, "in instances in which probable cause has been established, the absence of a warrant requirement under the implied consent provisions does not render the blood, breath, and urine tests unreasonable ... due to time's dissipating effect on the evidence." Id. at 315, disapproved of based on Birchfield by Commonwealth v. Myers , 640 Pa. 653, 164 A.3d 1162 (2017) (plurality). The Kohl Court found that 75 Pa.C.S. § 1547(a)(2), a provision contained in a prior version of our implied consent statute, was unconstitutional under both the federal and state constitutions because it permitted a warrantless blood alcohol test based on less than probable cause to believe that a driver of a vehicle was under the influence of alcohol. Kohl , 615 A.2d at 314, 315. It further held, however, that section 1547(a)(1) was constitutional because it provided for a warrantless blood draw if police had probable cause to believe that the person was driving under the influence of alcohol or a controlled substance. Id. at 315.
Section 1547(a)(2), which Kohl ruled unconstitutional, provided:
(a) General rule.-Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a motor vehicle:
* * *
(2) which was involved in an accident in which the operator or passenger of any vehicle involved or a pedestrian required treatment at a medical facility or was killed.
As found by the Kohl Court, "The statutory provision does not require any individualized suspicion of alcohol or drug use by the driver." Kohl , 615 A.2d at 313.
Five years later, in response to a Fourth Amendment challenge to the law, a plurality of this Court held that the appellant "had no constitutional right to refuse chemical testing," and where the prerequisites of our implied consent law were met, "no search warrant was necessary" to conduct a blood alcohol test. Commonwealth v. Stair , 548 Pa. 596, 699 A.2d 1250, 1253-55 (1997) (Opinion in Support of Affirmance ("OISA")). Notably, the remainder of the Court did not take issue with this aspect of the OISA; its disagreement was based on its conclusion that the trooper had no authority to arrest the defendant, as the traffic stop occurred in Maryland, not Pennsylvania. Id. at 1256-57 (Opinion in Support of Reversal). See also Commonwealth v. Riedel , 539 Pa. 172, 651 A.2d 135, 139 (1994) (holding that under the Fourth Amendment, "where an officer has probable cause to request a blood test pursuant to 75 Pa.C.S. § 3755(a), the failure to verbalize the request shall not bar the officer from obtaining the results of a medical purposes blood test without a warrant"), disapproved of based on Birchfield by Commonwealth v. Myers , 640 Pa. 653, 164 A.3d 1162 (2017) (plurality); Commonwealth v. Shaw , 564 Pa. 617, 770 A.2d 295, 299 (2001) (holding that pursuant to Article I, Section 8, "[t]he implied consent provision of 75 Pa.C.S. § 1547(a)(1) does not eliminate the need to obtain a warrant to seize medical records, but only to request and conduct chemical tests"), quoting Riedel , 651 A.2d at 135 (Zappala, J., concurring).
Furthermore, this Court denied allowance of appeal in Beshore , which held, in reliance on the OISA in Stair , held that a defendant has no constitutional right to refuse to consent to a blood test. See Commonwealth v. Beshore , 603 Pa. 679, 982 A.2d 509 (Pa. 2007).
Both the Commonwealth and criminal defendants operated in reliance upon that law. It was not until the United States Supreme Court issued its decision in Birchfield (which occurred one day after Hays' trial ) that a change in the law occurred. Now, pursuant to Birchfield , a warrantless blood draw is generally unconstitutional, and the illegality is not cured by a state's implied consent law. Birchfield , 136 S. Ct. at 2185-86. The Court recognized that the exigent circumstances exception to the warrant requirement may apply, but stated that this question must be considered on a case-by-case basis. Id. at 2174. The Birchfield Court further held, in pertinent part, that consent cannot be coerced by the threat of enhanced criminal penalties for refusing a blood test. Id. at 2186.
Hays' trial occurred on June 22, 2016; the high Court decided Birchfield on June 23, 2016.
As in O'Connor , Kuchinic , Clark and Cleveland , Hays had no basis to move to suppress the warrantless blood draw and blood results in his case, as the law in place at the time of his trial did not entitle him to relief on this claim. It was not until the Birchfield Court handed down its decision that Hays had a valid basis to advocate for the exclusion of this evidence. As such, pursuant to longstanding precedent of this Court and the United States Supreme Court, his failure to object on this basis does not result in waiver of the claim on direct appeal. O'Connor , 385 U.S. at 93, 87 S.Ct. 252 ; Kuchinic , 222 A.2d at 901 ; Clark , 266 A.2d at 743-44 ; Cleveland , 690 A.2d at 1151.
For the foregoing reasons, I disagree with the Majority's conclusion that Hays is not entitled to retroactive application of Birchfield because he failed to preserve the issue before the trial court. I therefore respectfully dissent.
Justices Todd and Wecht join this dissenting opinion.