ARGUED: April 10, 2019
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
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY,
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 analysis, and, thus, does not apply
retroactively. We affirm.
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.Olson did not file a direct appeal, and his
judgment of sentence became final on January 20, 2016.
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
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.
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.
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).
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
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.
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)
Legality of Sentence
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.
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.
The Teague Framework
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)).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.").
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 ...