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Commonwealth v. Olson

Supreme Court of Pennsylvania

October 31, 2019

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JEFFREY ALAN OLSON, Appellant

          ARGUED: April 10, 2019

          Appeal from the Order of the Superior Court entered February 14, 2018 at No. 158 WDA 2017, affirming the Order of the Court of Common Pleas of Somerset County entered December 22, 2016, at No. CP-56-CR-0000544-2015.

          SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

          OPINION

          WECHT JUSTICE.

         We granted allowance of appeal to consider whether the holding of Birchfield v. North Dakota, __U.S.__, 136 S.Ct. 2160 (2016), constitutes a new rule of law that applies retroactively on post-conviction collateral review. The Superior Court concluded that Birchfield set forth a "procedural" rule for purposes of the Teague[1] analysis, and, thus, does not apply retroactively. We affirm.

         I. Background

         Jeffrey Alan Olson entered an open guilty plea to one count of driving under the influence of alcohol-general impairment ("DUI") on September 18, 2015. This was Olson's third DUI offense, and, at the time, he was subject to a sentence enhancement due to his refusal to submit to blood alcohol concentration ("BAC") testing. On December 21, 2015, the trial court sentenced Olson to a term of eighteen months' to five years' imprisonment, applying the then-applicable mandatory minimum sentencing provision.[2]Olson did not file a direct appeal, and his judgment of sentence became final on January 20, 2016.

         On June 23, 2016, the Supreme Court of the United States decided Birchfield. As discussed further below, the Birchfield Court held, inter alia, that a state may not "impose criminal penalties on the refusal to submit" to a warrantless blood test. Id. at 2185.

         On August 17, 2016, Olson filed a timely, pro se petition for relief under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-46, challenging, inter alia, the legality of his sentence in light of Birchfield. The PCRA court appointed counsel for Olson, and held a hearing on October 24, 2016. Olson filed a counseled, amended PCRA petition on November 8, 2016. After the PCRA court dismissed Olson's petition on December 23, 2016, Olson appealed the PCRA court's order to the Superior Court.

         The Superior Court affirmed. Commonwealth v. Olson, 179 A.3d 1134 (Pa. Super. 2018). The court recognized that Birchfield rendered unconstitutional the imposition of enhanced criminal penalties due to the refusal to submit to warrantless blood testing, such that "a sentencing court today could not have sentenced [Olson] to the mandatory minimum sentence under Section 3804(c)(3)." Id. at 1138. However, because Olson's judgment of sentence already was final, the Superior Court reasoned, Olson would be entitled to benefit from Birchfield's application only if the decision were deemed to apply retroactively on collateral review.

         Setting forth the governing legal standard, the Superior Court noted that, pursuant to the Teague 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 1139 (quoting Commonwealth v. Ross, 140 A.3d 55, 59 (Pa. Super. 2016)). New rules apply retroactively in a collateral proceeding, the court observed, only if the rule is "substantive," or constitutes a "watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." Id. (internal quotation marks omitted). With regard to the distinction between substantive and procedural rules, the Superior Court summarized: "Substantive rules are those that decriminalize conduct or prohibit punishment against a class of persons. Rules that regulate only the manner of determining the defendant's culpability are procedural." Id. (quoting Ross, 140 A.3d at 59; capitalization modified).

         After observing the operation of the applicable sentencing statute, which "effectively increases the punishment when a driver refuses to consent to a blood test," id., the Superior Court applied the Teague standard as follows:

The new Birchfield rule, as it applies to Pennsylvania's DUI statutes providing for enhanced penalties, does not alter the range of conduct or the class of persons punished by the law: DUI remains a crime, and blood tests are permissible with a warrant or consent. Rather, the new rule precludes application of this mandatory minimum sentencing provision providing an enhanced penalty for [Olson's] refusal to submit to blood testing. This change in the Pennsylvania sentencing enhancements applicable to DUI convictions is procedural because the new Birchfield rule regulates only the manner of determining the degree of defendant's culpability and punishment.

Id. Having deemed the Birchfield rule "procedural" rather than "substantive," the Superior Court thus determined that "Birchfield does not apply retroactively in Pennsylvania to cases pending on collateral review." Id. Accordingly, although Olson received a sentence that was facially invalid under Birchfield, the Superior Court concluded that Olson could not benefit from Birchfield's application because his judgment of sentence was final when Birchfield was decided.

         We granted Olson's petition for allowance of appeal in order to address the following questions:

a. Does Birchfield v. North Dakota, __U.S.__, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016), apply retroactively where the petitioner challenges the legality of his sentence through a timely petition for post-conviction relief?
b. Does Birchfield v. North Dakota, __U.S.__, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016), render enhanced criminal penalties for blood test refusal under 75 Pa.C.S. §§ 3803-3804 illegal?

Commonwealth v. Olson, 190 A.3d 1131 (Pa. 2018) (per curiam).

         II. Analysis

         (A) Legality of Sentence

         After we granted allowance of appeal in this matter, this Court decided Commonwealth v. Monarch, 200 A.3d 51 (Pa. 2019), which resolved the second question presented. In Monarch, we concluded that, "[u]nder Birchfield, it is clear the enhanced mandatory minimum sentences authorized by the statute are unconstitutional when based on a refusal to submit to a warrantless blood test." Id. at 57. We held that a challenge to such a sentence implicates the sentence's legality, and thus is nonwaivable and may be raised by a court sua sponte. Accordingly, the question in this appeal relating to the legality of sentence is fully answered by Monarch. However, this observation does not resolve the matter of Olson's sentence, inasmuch as "a new rule of law does not automatically render final, pre-existing sentences illegal." Washington, 142 A.3d at 814. Rather, a "finding of illegality, concerning such sentences, may be premised on such a rule only to the degree that the new rule applies retrospectively." Id. We therefore turn to the central issue raised in this appeal.

         (B) Retroactivity

         The determination of whether a new rule is to be applied retroactively on collateral review presents a question of law, as to which our standard of review is de novo and our scope of review is plenary. Washington, 142 A.3d at 814. In order to situate the parties' competing approaches to this question, it is helpful to summarize both the rationale of Birchfield and the legal standard that this Court applies to questions of retroactivity-the Teague v. Lane framework.

         (1) The Teague Framework

         When a decision of the Supreme Court of the United States results in a "new rule," that "rule applies to all criminal cases still pending on direct review." Schriro v. Summerlin, 542 U.S. 348, 351 (2004) (citing Griffith v. Kentucky, 479 U.S. 314, 328 (1987)).[3]However, "[u]nder Teague, a new constitutional rule of criminal procedure does not apply, as a general matter, to convictions that were final when the new rule was announced." Montgomery v. Louisiana, __U.S.__, 136 S.Ct. 718, 728 (2016). There are, however, "two categories of rules" that are exempt from Teague's "general retroactivity bar," id., which a defendant may invoke notwithstanding the finality of his or her judgment of sentence. First, "[n]ew substantive rules generally apply retroactively." Schriro, 542 U.S. at 351. Second, a much narrower class of "watershed rules of criminal procedure" also apply retroactively. The High Court has described such "watershed" rules as those that "implicat[e] the fundamental fairness and accuracy of the criminal proceeding." Id. at 352 (internal quotation marks omitted). Because no party in the instant case contends that Birchfield announced a "watershed" rule of criminal procedure, we are here concerned only with the first category, and its attendant determination of whether the Birchfield rule is "substantive." See Commonwealth v. Spotz, 896 A.2d 1191, 1243 (Pa. 2006) ("For purposes of retroactivity analysis, we distinguish between new rulings involving substantive criminal law, which are applied retroactively on collateral review, and new procedural rulings of constitutional dimension, which are generally subject only to prospective application.").

         Substantive rules include those "forbidding criminal punishment of certain primary conduct" or "prohibiting a certain category of punishment for a class of defendants because of their status or offense." Montgomery, 136 S.Ct. at 728. "A rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes." Schriro, 542 U.S. at 353. Substantive rules "set forth categorical constitutional guarantees that place certain criminal laws and punishments altogether beyond the State's power to impose." Montgomery, 136 S.Ct. at 729. Procedural rules, by contrast, "are designed to enhance the accuracy of a conviction or sentence by regulating 'the manner of determining the defendant's culpability.'" Id. at 730 (quoting Schriro, 542 U.S. at 353) (emphasis omitted). "They do not produce a class of persons convicted of conduct the ...


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