Comm. v. Kehr, 2018 PA Super 44 (Feb. 28, 2018)

This was an appeal out of York County.  The Superior Court considered if a change in the law, after a defendant pleads guilty and is sentenced, permits for the defendant to withdraw their plea. In this instance, the change in the law that was at issue was the U.S. Supreme Court’s decision in North Dakota v. Birchfield, ___ U.S. ___, 136 S.Ct. 2160 (2016).  (Again, Birchfield was a case finding that a DUI motorists blood cannot be drawn, after arrest, without a warrant, and it cannot be obtained upon consent if the consent is coerced by the threat of enhanced punishment.)

The appellant, Kehr, negotiated a guilty plea to one count of DUI, and the next day he was sentenced to six months of house arrest.  Two days later, the U.S. Supreme Court decided Birchfield, which would have been favorable to Kehr and resulted in a lesser sentence.  As a result, six days after Birchfield was decided and eight days after his sentence was imposed, Keher filed a post-sentence motion requesting to withdraw his plea.  Essentially, he argued that the change in the law made his plea “unknowing and involuntary.”  The trial court disagreed and denied the motion.

On appeal, the Superior Court began by noting the following: “Post-sentence motions for withdrawal are subject to higher scrutiny since courts strive to discourage entry of guilty pleas as sentence-testing devices.  A defendant must demonstrate that a manifest injustice would result if the trial court were to deny his post-sentence motion to withdraw a guilty plea.”

Under these circumstances, the Superior Court was unconvinced that Kehr had demonstrated a manifest injustice. It did not accept Kehr’s position that his plea became unknowing and involuntary due to a later change in the law.  The Superior Court noted that “[t]he question is whether [Kehr’s] plea was knowing and voluntary, an inquiry that must be examined in light of what was known and said on that day.”

The Superior Court noted that Birchfield could have turned out the other way, unfavorable to Kehr.  Under this alternative reality, the Superior Court remarked, Kehr would have surely argued that his plea would have been voluntary.

On the whole, a favorable change in the law does not constitute a “manifest injustice” to permit the withdrawal of a guilty plea after sentencing.  Moreover, the Superior Court noted, Kehr’s real complaint—that his attorney was ineffective for advising a plea in light of a possible favorable result in Birchfield—fails to account for the benefit of hindsight.  Had Birchfield come out the other way, the Superior Court said “there is no doubt that [Kehr] would happily [have] kept his plea on the books.”  In conclusion, the Superior Court said this:

[Kehr] accepted his plea [before] Birchfield; generally speaking, the possibility that circumstances might change after the negotiation concluded is a risk that accompanies any bargain.  Had [Kehr] sought suppression from the start and lost, he may have ended up with a worse sentence than offered by the plea if the United States Supreme Court had ultimately decided Birchfield in an unfavorable manner.  The mitigation of risk through foregoing suppression motions is part and parcel of the plea process.

Thus, the take away of the case can be summed up by what was said in a case out of the Court of Appeals for the Fourth Circuit:

A plea agreement, like any contract, allocates risk.  And the possibility of a favorable change in the law occurring after a plea is one of the normal risks that accompanies a guilty plea.

For this reason, Kehr’s plea was made to stand.