J-S26041-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

SHANE JORGE ALVAREZ-GRAULAU, :

:

Appellant : No. 1632 MDA 2016

Appeal from the Judgment of Sentence June 21, 2016

In the Court of Common Pleas of York County

Criminal Division at No.: CP-67-CR-0000671-2016

BEFORE: BOWES, J., DUBOW, J., and FITZGERALD, J.*

MEMORANDUM BY DUBOW, J.: FILED MARCH 23, 2018

Appellant, Shane Jorge Alvarez-Graulau, appeals from the June 21, 

2016 Judgment of Sentence entered in the York County Court of Common 

Pleas after he entered a negotiated guilty plea to one count of Driving Under 

the Influence (“DUI”) (highest rate of alcohol).1 After careful review, we 

affirm.

In January 2016, Appellant drove his Honda Accord through several 

backyards, damaged a fence, and his vehicle became stuck in a drainage 

culvert. After a police officer responded to the scene of the accident and 

spoke with Appellant, the officer arrested Appellant based on his suspicion 

 

*Former Justice specially assigned to the Superior Court.

1 75 Pa.C.S. § 3802(c).
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that Appellant was driving while intoxicated.2 Police gave Appellant implied 

consent warnings pursuant to 75 Pa.C.S. § 1547(b)(2) (describing officer’s 

duty to inform individuals about the mandatory penalties and consequences 

of refusing chemical testing). Appellant consented to a blood draw, from 

which his blood alcohol concentration (“BAC”) was determined to be 

0.163%.

Based on Appellant’s BAC, he was charged with, inter alia, the abovestated DUI offense. Notably, Appellant did not file any pre-trial motions.

On June 21, 2016, Appellant entered a negotiated guilty plea to DUI 

(highest rate of alcohol).3 That same day, the trial court imposed a term of 

five years’ intermediate punishment, with the first thirty days in York County 

Prison followed by sixty days on house arrest with alcohol monitoring, as 

well as a $1,500 fine.

4

Two days after Appellant’s sentencing hearing, the United States 

Supreme Court decided Birchfield v. North Dakota, ___ U.S. ___, 136 

S.Ct. 2160, 195 L.Ed.2d 560 (2016), holding that warrantless blood tests 

 

2 Appellant’s eyes appeared blood shot and glassy, his breath smelled of 

alcohol, he failed three field sobriety tests, and he admitted that he had 

recently consumed three beers.

3 The Commonwealth nolle prossed several charges.

4 For clarity, we note that our review of the certified record indicates that the 

trial court did not impose a mandatory minimum sentence based on 

Appellant’s refusal to consent to a warrantless blood test, and Appellant does 

not claim that it did.
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taken pursuant to implied consent laws are an unconstitutional invasion of 

privacy. Id. at 2186. The Supreme Court stated that “motorists cannot be 

deemed to have consented to submit to a blood test on pain of committing a 

criminal offense[,]” and concluded that Birchfield could not be convicted of 

refusing a warrantless blood draw following his DUI arrest. Id.

On June 30, 2016, Appellant filed a Post-Sentence Motion in which he 

requested to withdraw his guilty plea based on the Birchfield decision. On 

August 30, 2016, the trial court denied Appellant’s Post-Sentence Motion, 

concluding that Appellant failed to demonstrate a manifest injustice

warranting the withdrawal of his negotiated guilty plea.

Appellant filed a Notice of Appeal on September 29, 2016. Both 

Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant presents one issue for our review:

The trial court erred when it denied Appellant’s Post–Sentence 

Motion to Withdraw Plea... [sic] denying his request constitutes a 

manifest injustice because the evidence against him was 

obtained in violation of the 4th Amendment of the United States 

Constitution, and... [sic] the Birchfield decision makes 

Appellant’s plea unknowing and involuntary under the 

circumstances.

Appellant’s Brief at 4 (footnote omitted).

After the imposition of sentence, a trial court may grant a motion to 

withdraw a guilty plea only to correct a manifest injustice. Commonwealth 

v. Baez, 169 A.3d 35, 39 n.1 (Pa. Super. 2017). A defendant can establish 

manifest injustice if, based on the totality of circumstances surrounding the 
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plea, “the plea was not tendered knowingly, intelligently, and voluntarily.” 

Commonwealth v. Broaden, 980 A.2d 124, 129 (Pa. Super. 2009). This 

Court has held that even “[a] deficient plea does not per se establish 

prejudice on the order of manifest injustice.” Id.

This Court will not disturb the decision of the trial court absent an 

abuse of discretion, which we have often described as instances where “the 

law is overridden or misapplied, or the judgment exercised is manifestly 

unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown 

by the evidence or the record[.]” Id. at 128.

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 at all stages of adjudication. Commonwealth 

v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc). See also

Commonwealth v. Moyer, 171 A.3d 849, 855 (Pa. Super. 2017) (denying 

retroactive application of Birchfield to defendant sentenced two days before 

Birchfield decision where defendant did not challenge the voluntariness of 

his consent to a warrantless blood draw in the lower court until PostSentence Motion); Commonwealth v. Kehr, ___ A.3d ___, 2018 PA Super 

44 (Pa. Super. filed Feb. 28, 2018) (same, where defendant sentenced three 

days before Birchfield decision).

Appellant argues that the trial court erred in refusing to permit him to 

withdraw his guilty plea given the Birchfield decision, which Appellant 
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claims rendered his guilty plea “unknowing and involuntary.” Appellant’s 

Brief at 11.

As explained above, the United States Supreme Court handed down 

Birchfield two days after Appellant entered his guilty plea and secured his 

negotiated sentence. Appellant never challenged the voluntariness of his 

consent to the warrantless blood draw in a pre-trial motion, and he did not 

raise any issue implicated by the Birchfield decision until his Post-Sentence 

Motion.5 Thus, he is not entitled to retroactive application of Birchfield and 

the trial court properly denied Appellant’s Post-Sentence Motion seeking 

permission to withdraw his guilty plea.

6

 Kehr, supra; Moyer, supra at 

855.

 

5 We reject Appellant’s assertion that he raised this issue at the earliest 

possible opportunity since it would have been “frivolous” prior to the 

Birchfield decision. See Appellant’s Brief at 13. Such challenges were not

frivolous to the attorneys representing the consolidated defendants in the 

Birchfield case; they presented those arguments and, in part, succeeded 

before the United States Supreme Court despite failing to persuade many 

state courts. Moreover, defendants have filed pre-trial motions to suppress 

evidence of non-consensual and warrantless blood tests for decades—dating 

back nearly to the imposition of the federal exclusionary rule on states itself. 

See, e.g., Commonwealth v. Murray, 271 A.2d 500 (Pa. 1970) (reversing 

denial of pre-trial motion to suppress blood test results, obtained without a 

warrant or consent, and granting a new trial where police obtained blood on 

the night of accident but not incident to the defendant’s arrest 13 days 

later).

6 Appellant’s challenge to his guilty plea solely focuses on the Birchfield

decision. Appellant does not otherwise attack his plea. Accordingly, we 

agree with the trial court’s reasoning that Appellant freely entered his plea 

knowingly, intelligently, and voluntarily. See Trial Court Opinion, 1/11/17, 

at 3-7.
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Judgment of Sentence affirmed.

Justice Fitzgerald did not participate in the consideration or decision of 

this case.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 03/23/2018