Superior Court ignores its own precedent reversing suppression of warrantless seizure of blood based on implied consent

Commonwealth v Kim David March, 2017 PA Super 18 (Pa. Super, 1/26/2017)

The Superior Court reversed a pre- Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct. 2160 (2016) Common Pleas decision suppressing blood seized without a warrant from an unconscious driver following an accident police believed involved DUI. Coming upon an accident scene, the police found Mr. March to be “out of it” and evidence of drug use on the front seat of his car. At the hospital, Mr. March was unconscious and could not be read the DL26. The police had probable cause, the Superior Court ruled, and the implied consent law gave police the power to seize the blood. The case, decided by the Common Pleas court three months before Birchfield, was remanded for further proceedings. The panel in this case made no mention of Birchfield.

Presumably, on remand, someone will raise Birchfield. One member of this panel was also a member of the panel that applied Birchfield for the first time in Commonwealth of PA v. David Eugene Evans, 2016 PA Super 293 (12/20/16). If the defendant cannot be coerced by the implied consent law into giving consent when conscious, it is hard to see how consent can be attributed to an unconscious one.



Counsel must consult with client about appeal rights even after a negotiated sentence is imposed if there are appealable issues

Commonwealth v. Rivera, 2017 PA Super 14  ___ A.3d ____ (Pa. Super. Ct. 1/18/2017)

In this case, counsel was held ineffective for failing to discuss, “sua sponte,” whether her client should file an appeal because his sentence— a mandatory sentence now deemed illegal pursuant to Alleyne v. United States, ___ U.S. ____, 133 S.Ct. 2151 (U.S. 2013). The Superior Court affirmed the PCRA court’s reinstatement of the defendant’s post-sentence and appellate rights. The case is significant because it marks a departure from Commonwealth v Reichle, 589 A.2d 1140 (Pa. Super. 1991) which held that when a defendant receives a sentence in accordance with a plea bargain, counsel is not obligated to discuss an appeal with his client. (Reichle’s authority is suspect in the wake of  Roe v. Flores-Ortega, 528 U.S. 470 (2000) and Commonwealth v. Touw, 781 A.2d 1250 (Pa. Super. 2001).) Mr. Rivera did receive the sentence he bargained for, but it was an illegal sentence due to Alleyne v. United States, ____U.S. ___133 S.Ct. 2151 (U.S. 2013).  While counsel was not ineffective for advising her client to agree to an illegal sentence because at the time the law on the matter was far for clear and she achieved a significant reduction of charges in return, she was ineffective for failing to consult with him about an appeal because, notwithstanding the Commonwealth’s and Common Pleas Court’s honoring of the agreement, there was an appealable issue due to Alleyne

The Court rejected the Commonwealth’s argument that Mr. Rivera could seek relief by way of a PCRA challenge to the sentence, noting that due to Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016), he might not be able to overturn the sentence on collateral appeal. By reinstating the direct appeal, he could challenge the legality of the sentence.

Counsel should always discuss appeal rights with clients after sentence and record their understanding of what the client wants to do.  Commonwealth v. Touw contains the best explanation of counsel’s obligations under Article V, §9 of the Pa. Constitution to “consult” with a client about an appeal.

Citing to studies of racial disparities in arrests, Third Circuit vacates sentence based on unexplained arrests that did not result in convictions

United States v Mateo-Medina 15-2862 (3d. Cir. 1/9/2017)

The defendant pled guilty to illegally reentering the United States, but appealed his sentence because the district court specifically cited a number of arrests that did not result in convictions, without discussing or possibly even knowing the reasons for those arrests, as a ground for its sentence. Most interesting in the opinion is its citation to disparity in numbers of arrests between whites and persons of color, supported by citation to a 2013 United Nations report entitled Report of The Sentencing Project to the United Nations Human Rights Committee Regarding Racial Disparities in the United States Criminal Justice System, and other publications describing the disparities. This case thus is a good source for sentencing arguments even in state court, where counsel seeks to place a long string of arrests into context.

After being deported from the United States in 2012, the defendant returned to care for his common law wife, dying of terminal cancer, and her minor grandchild, who had been abandoned by a drug addicted father. Also in the household was the wife’s other, adult son, who suffered from mental health problems, aggravated by substance abuse that made him disruptive. After the wife died a few months later, the defendant stayed to take care of the grandchild, but after being confronted by the defendant, the deceased’s wife’s disturbed son reported the defendant to the authorities and he was arrested. The grandchild therapist credited the defendant with providing him with a stable and loving environment during and after the time his grandmother was dying. The PSR— mandatory in federal sentencings—  recommended a downward departure of two points, and both the government and the defense sought time served. The district court though, citing the defendant’s seven arrests that led to two convictions, did not give as great a downward departure as everyone sought. It said, among other things, it was “rather obvious that the reason he doesn’t have any actual adult convictions is because of the breakdowns in the court—in the state court system—and not because of innocence . . . . Taking all those factors in to account, given the fact that their criminal points . . . I don’t think reflect quite adequately, the seriousness of their criminal exposure in the past. The fact that they were charged with crimes and then, the prosecution was dropped because nobody showed up to prosecute or something like that, means that their criminal history points were probably understated.”

After ruling that the defense preserved the objection (federal rules on preserving objections at sentencing are different from Pennsylvania’s rules), the Court ruled that resentencing was in order because of the reliance the sentencing court placed on the unexplained arrests. Among the quotations lifted form the report was the following:

Contrary to popular explanations of racial disparities in drug arrest[s], this research found that the racial disparity in drug arrests between black and whites cannot be explained by race differences in the extent of drug offending, nor the nature of drug offending. In fact, in this sample, African-Americans (and Hispanics) were no more, and often less, likely to be involved in drug offending than whites. Further, while minorities were more likely to live in the kinds of neighborhoods with heavy police emphasis on drug control and living in such neighborhoods had a strong relationship to drug arrest; neighborhood context explained only a small portion of racial disparity in drug arrests between African- Americans and whites.

For this reason, the district court’s reliance on bare arrest records when sentencing the defendant, and resentencing was required.

Alleyne challenges implicate legality of sentence, and can be considered on direct appeal even if not properly raised

Commonwealth v. Barnes, 36 EAP 2015 (12/28/16)

Mr. Barnes was convicted of PWID and possession of a firearm, and was sentenced on the PWID to a five year mandatory pursuant to 42 Pa.C.S. §9712.1, which has since been declared unconstitutional. A few weeks after he was sentenced, the U.S. Supreme Court issued Alleyne, but counsel did not include the issue in his 1925(b) statement. (Issues regarding the legality of a sentence do not have to be raised in post-sentence motions to be preserved.) The Superior Court considered the Alleyne issue sua sponte, and concluded Alleyne did not apply.

The Supreme Court reversed, holding that a sentence imposed pursuant to a statute that violates Alleyne is illegal, and that Mr. Barnes’ sentence was illegal. The opinion however notes that Alleyne cannot be applied on collateral review pursuant to Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016).

Terroristic threats can merge with robbery

Commonwealth v Luciano Martinez, 2016 PA Super 309 (12/29/16)

The Superior Court affirmed Mr. Martinez’ convictions for robbery, persons not to possess a firearm, carrying a firearm without a license, theft by unlawful taking, theft by receiving stolen property, possession of an instrument of crime, carrying a firearm on public streets of Philadelphia, simple assault, recklessly endangering another person, and terroristic threats. He managed to prevail though on his claim that the crime of terroristic threats can with robbery. The robbery charge in his case required proof that the threatened serious bodily injury or intended to place the victim in fear of serious bodily injury, and terroristic threats is the communication of a threat to commit a crime of violence with the intent to cause terror. As in this case the charges arose from the same act, the merged for purposes of sentencing. His concurrent conviction for terroristic threats was therefore vacated. The same argument did not sway the Superior Court regarding his REAP and simple assault charges though.