J-S31029-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ALEXANDER OTT 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3995 EDA 2017

Appeal from the Judgment of Sentence November 6, 2017

In the Court of Common Pleas of Delaware County Criminal Division at 

No(s): CP-23-CR-0005017-2017

BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.: FILED JULY 13, 2018

Alexander Ott appeals from his judgment of sentence following the entry 

of a negotiated guilty plea to the charge of driving under the influence (“DUI”)

– controlled substance – Schedule I (1st Offense).1 Counsel has filed a petition 

to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and its 

progeny.2 After careful review, we remand with instructions, deny counsel’s 

motion to withdraw, and retain panel jurisdiction.

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1 75 Pa.C.S. § 3802(d)(1)(i). 

2 Pursuant to Pa.R.A.P. 1925(c)(4), counsel has filed of record and served on 

the trial judge his intent to file an Anders brief in lieu of a Pa.R.A.P. 1925(b) 

statement of errors complained of on appeal. 
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On June 2, 2017, Officer Joseph L. Laspina, Jr., of the Morton Borough 

Police Department, observed Ott’s car and smelled burnt marijuana. He 

followed the car to a Wawa parking lot and conducted a search of Ott’s 

vehicle.3 He found seven bags of marijuana (30 grams or fewer) and related 

paraphernalia. Officer Laspina wrote in his affidavit of probable cause that, 

“Ott was read the DL[-]26 form in its entirety[,] signed, and agreed to provide 

blood.” Aff. Of Probable Cause, June 4, 2017, 1. Following arraignment on 

September 13, 2017, the court formally charged Ott with, inter alia, DUI–

controlled substance – Schedule I (1st Offense).4

On November 6, 2017, Ott entered a negotiated guilty plea with regard 

to the charge and sentence. Accordingly, Ott was sentenced to six months of

intermediate punishment with the first twenty days on electronic home 

monitoring, eighty hours of community service, a $1,000 fine, and a $100 cost 

assessment. No post-sentence motions were filed. Ott filed a notice of appeal 

on December 5, 2017, with the assistance of counsel. On December 6, 2017,

the court ordered Ott to provide a Pa.R.A.P. 1925(b) statement of errors 

complained of on appeal within twenty-one days. Counsel notified the court 

of his intention to file an Anders brief on December 22, 2017. 

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3 We note that there is a lack of information in the record regarding the stop 

itself.

4 75 Pa.C.S. § 3802(d)(1)(i). 
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In order for counsel to withdraw from an appeal pursuant to Anders, 

counsel must: 1) petition the court for leave to withdraw, stating that counsel 

made a conscientious examination of the record and that the appeal is 

frivolous; 2) file an Anders brief indicating any issues of arguable merit; and 

3) provide the defendant with a copy of the brief and inform him of his right 

to retain new counsel or raise additional issues before this Court. 

Commonwealth v. Santiago, 978 A.2d 349, 351 (Pa. 2009). Counsel’s 

Anders brief must: 

(1) provide a summary of the procedural history and facts, with 

citations to the record; (2) refer to anything in the record that 

counsel believes arguably supports the appeal; (3) set forth 

counsel's conclusion that the appeal is frivolous; and (4) state 

counsel's reasons for concluding that the appeal is 

frivolous. Counsel should articulate the relevant facts of record, 

controlling case law, and/or statutes on point that have led to the 

conclusion that the appeal is frivolous.

Id. at 361. In addition to determining whether counsel fulfilled his obligations 

under Anders, this Court is obligated to make a “full examination of the 

proceedings and make an independent judgement to decide whether the 

appeal is in fact wholly frivolous.” Commonwealth v. Flowers, 113 A.3d 

1246, 1248 (Pa. Super. 2015) (citing Santiago, 978 A.2d at 354 n.5). 

Here, counsel timely petitioned the court for leave to withdraw,

examined the record, determined the appeal was frivolous, and provided Ott 

with a copy of the Anders brief. Ott was informed of his right to obtain private 

counsel or proceed pro se and file a response. Counsel’s Anders brief, 

however, may have overlooked a point of arguable merit.
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In his Anders brief, counsel notes that whether the sentence is harsh 

and excessive under the circumstances may be an issue of arguable merit.

However, counsel failed to address a possible Birchfield issue. See

Birchfield v. North Dakota, 136 U.S. 2160 (2016). In Birchfield, the 

Supreme Court held that that warrantless blood draws are a violation of the 

Fourth Amendment and that drivers cannot be found to have consented to a 

warrantless blood draw if they believe that their refusal constitutes a criminal 

offense. Id. at 2184-86.

Applying Birchfield, the Pennsylvania Superior Court found that drivers 

who refuse to provide blood cannot be charged with a higher penalty than 

they would have otherwise received. See Commonwealth v. Giron, 155 

A.3d 635, 640 (Pa. Super. 2017); see also Commonwealth v. Ennels, 167 

A.3d 716, 721, 724 (Pa. Super. 2017) (holding Birchfield ban on warrantless 

blood tests for DUI of alcohol also applied to individuals suspected of DUI of 

controlled substances). Thus, a driver who agrees to have blood drawn in 

order to avoid increased criminal penalties, which was the language of the

warnings contained on the pre-Birchfield DL-26 form, cannot be said to have 

consented to the procedure. See Commonwealth v. Evans, 153 A.3d 323, 

331 (Pa. Super. 2016). 

As noted above, Ott consented to a blood draw after Officer Laspina read 

him the DL-26 form; that form, however, has been modified by the 

Pennsylvania Department of Transportation in light of the Supreme Court’s 
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decision in Birchfield. See Commonwealth v. Robertson, 2018 PA Super 

110, at *5. (Pa. Super. filed May 3, 2018). The record in this case does not 

indicate whether Ott was read the warnings from a pre-Birchfield DL-26

form5 or the language on the revised DL-26B form.

Here, counsel correctly states that Ott entered into a negotiated guilty 

plea, thereby limiting the issues he can raise on appeal. Ott, in entering a 

negotiated guilty plea, waived his rights to “challenge on direct appeal all nonjurisdictional defects except the legality of the sentence and the validity of the 

plea.” Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa. Super. 2013). He 

may not, therefore, challenge the discretionary aspects of his sentence. 

Commonwealth v. O’Malley, 957 A.2d 1265, 1267 (Pa. Super. 2015).

Moreover, Ott waived the ability to challenge the validity of his plea by failing 

to object during the plea colloquy or by failing to file a post-sentence motion 

to withdraw the plea within ten days of sentencing. Lincoln, 72 A.3d at 609-

10. However, Ott may have a valid claim of ineffectiveness of counsel. 

The failure of trial counsel to file a motion to suppress the blood test 

results and failure to file a post-trial motion withdrawing the plea may amount 

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5 The warnings contained on the Pennsylvania Department of Transportation’s 

former DL-26 form provide that if a person refuses to consent to a blood test 

he or she will face more severe criminal penalties because of the refusal. See

Robertson, supra at *6. The DL-26 form was revised within one week of the 

Supreme Court’s decision in Birchfield. Robertson, supra at *5. The new 

form, the DL-26B, states that there may be civil penalties associated with 

refusal, but the language regarding enhanced criminal penalties was removed. 

See id.
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to ineffectiveness of counsel. Such challenges are typically appropriate for 

collateral review, not direct appeal. Commonwealth v. Grant, 813 A.3d 

726, 738 (Pa. 2002). There are, however, “extraordinary” cases where a trial 

court may “determine that a claim (or claims) of ineffectiveness is both 

meritorious and apparent from the record so that immediate consideration 

and relief is warranted.” Commonwealth v. Holmes, 621 Pa. 595, 621 (Pa. 

2013). The Holmes Court noted that such “unitary review” allows 

“defendants with shorter prison sentences or probationary sentences the 

prospect of litigating their constitutional claims sounding in trial counsel 

ineffectiveness; for many of these defendants, post-appeal PCRA review may 

prove unavailable.” Id. at 622. 

Ott may fall into the category of defendants for whom PCRA relief may 

be unavailable due to his short sentence, and for whom a Holmes exception 

may be appropriate. Furthermore, Ott may have grounds to claim 

ineffectiveness of counsel if he did not voluntarily consent to have his blood 

drawn under Birchfield and Evans, since no post-sentence motions were filed 

preserving his right to challenge the validity of his plea. Indeed, the plea 

colloquy specifically notes that the Affidavit of Probable Cause and the 

Toxicological Report formed the basis of Ott’s guilty plea. N.T. Sentencing, 

11/6/17, at 6. Whether Ott may claim counsel’s ineffectiveness for failing to 

address the possible Birchfield issue hinges on the content of the warnings 

on the form he was read before consenting to have his blood drawn. As noted 
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above, the record before us does not reflect whether the officer used the preBirchfield DL-26 form or the revised version of the form, the DL-26B. Thus, 

we are unable to conclude that there are no non-frivolous issues or that the 

appeal is wholly frivolous. 

In sum, our review of the certified record indicates that the form the 

officer read to Ott has not been included in the record submitted to this Court. 

Without this form, neither counsel nor this Court can fulfill its obligations under 

Anders and its progeny. Accordingly, we deny counsel’s petition to withdraw 

and remand this case for further proceedings consistent with this 

memorandum. 

Upon remand, counsel must obtain the form used at Ott’s arrest and 

ensure its inclusion in the certified record within twenty days of the filing of 

this decision. After review of the entire certified record, counsel shall, within 

thirty days, file either an advocate’s brief or a new petition to withdraw and 

an Anders brief that fully complies with the requirements detailed above. The 

Commonwealth shall have fifteen days to file a response brief or notify this 

Court that it does not intend to file a response brief. 

Motion for leave to withdraw denied. Case remanded with instructions. 

Panel jurisdiction retained.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/13/18