Com. v. Hopton, G. (memorandum)

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J-A05015-19 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA Appellee v. GARY EDWARD HOPTON Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 147 WDA 2018 Appeal from the PCRA Order Entered December 29, 2017 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0004475-2014, CP-02-CR-0016344-2014 BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J. MEMORANDUM BY GANTMAN, P.J.E.: FILED FEBRUARY 28, 2019 Appellant, Gary Edward Hopton, appeals from the order entered in the Allegheny County Court of Common Pleas, which denied his first petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm and grant counsel’s petition to withdraw. In its opinion, the PCRA court accurately set forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them. Preliminarily, appellate counsel has filed a motion to withdraw as counsel and an accompanying brief pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d ____________________________________________ 1 42 Pa.C.S.A. §§ 9541-9546. J-A05015-19 213 (Pa.Super. 1988) (en banc). Before counsel can be permitted to withdraw from representing a petitioner under the PCRA, Pennsylvania law requires counsel to file a “no-merit” brief or letter pursuant to Turner and Finley. Commonwealth v. Karanicolas, 836 A.2d 940 (Pa.Super. 2003). [C]ounsel must…submit a “no-merit” letter to the [PCRA] court, or brief on appeal to this Court, detailing the nature and extent of counsel’s diligent review of the case, listing the issues which the petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw. Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007). Counsel must also send to the petitioner a copy of the “no-merit” letter or brief and motion to withdraw and advise petitioner of his right to proceed pro se or with privately retained counsel. Id. “Substantial compliance with these requirements will satisfy the criteria.” Karanicolas, supra at 947. Instantly, appellate counsel filed a motion to withdraw as counsel and a Turner/Finley brief detailing the nature of counsel’s review and explaining why Appellant’s issues lack merit. Counsel’s brief also demonstrates he reviewed the certified record and found no meritorious issues for appeal. Counsel notified Appellant of counsel’s request to withdraw, and advised Appellant regarding his rights. Thus, counsel substantially complied with the Turner/Finley requirements. See Wrecks, supra; Karanicolas, supra. Counsel raises the following issues on Appellant’s behalf: WHETHER [APPELLANT] IS ENTITLED TO RE-SENTENCING BECAUSE, WHEN HE CONSENTED TO BLOOD TESTS, HE DID SO UNDER THE THREAT OF ADDITIONAL CRIMINAL -2- J-A05015-19 PENALTIES FOR REFUSING SUCH TESTS WHICH IS UNCONSTITUTIONAL UNDER BIRCHFIELD V. NORTH DAKOTA, ___ U.S. ___, 136 S.CT 2160[, 195 L.Ed.2d 560] (2016)? WHETHER [APPELLANT] IS ENTITLED TO REINSTATEMENT OF HIS RIGHT TO APPEAL HIS AUGUST 20, 2014 JUDGMENT OF SENTENCE AT CP-02-CR-0004475-2014 AND APRIL 17, 2015 JUDGMENT OF SENTENCE AT CP-02-CR-00163442014, WHERE TRIAL COUNSEL FAILED TO ADVISE [APPELLANT] CERTIORARI WAS PENDING BEFORE AND/OR GRANTED BY THE UNITED STATES SUPREME COURT ON THE CONSTITUTIONALITY OF IMPOSING GREATER CRIMINAL PENALTIES FOR REFUSAL TO SUBMIT TO A CHEMICAL TEST OF BLOOD DURING THE TIME PERIOD WITHIN WHICH [APPELLANT] COULD HAVE TIMELY COMMENCED PCRA PROCEEDINGS TO SEEK REINSTATEMENT OF HIS RIGHT TO APPEAL SAID SENTENCES? (Turner/Finley Brief at 2).2 Our standard of review of the denial of a PCRA petition is limited to examining whether the record evidence supports the court’s determination and whether the court’s decision is free of legal error. Commonwealth v. Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d 319 (2008). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). If the record supports a post-conviction court’s credibility determination, it is binding on the appellate court. Commonwealth v. ____________________________________________ Appellant has not responded to the Turner/Finley brief pro se or with newly retained private counsel. 2 -3- J-A05015-19 Dennis, 609 Pa. 442, 17 A.3d 297 (2011). After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable David R. Cashman, we conclude Appellant’s issues merit no relief. The PCRA court opinion comprehensively discusses and properly disposes of the questions presented. (See PCRA Court Opinion, filed October 24, 2018, at 5-14) (finding: Appellant’s PCRA petition is untimely with respect to any claims concerning his original pleas, convictions, and judgments of sentence imposed on August 20, 2014 and April 17, 2015; nevertheless, Appellant’s PCRA petition is timely with respect to claims concerning his revocation sentence; however, Appellant is not entitled to relief under Birchfield, where court imposed revocation sentence on January 4, 2016, Appellant did not appeal revocation sentence, his revocation sentence became final before Birchfield was decided on June 23, 2016, and Birchfield has not been held to apply retroactively to cases on collateral review; further, U.S. Supreme Court granted certiorari in Birchfield on December 11, 2015, and decided it on June 23, 2016, so Appellant cannot prove counsel gave him improper advice concerning state of law in 2014 and early 2015, when Appellant entered his original guilty pleas; counsel is not ineffective for failing to predict change in law). Accordingly, we affirm based on the PCRA court’s opinion. Following an independent review of the record, we grant counsel’s petition to withdraw. Order affirmed; counsel’s petition to withdraw is granted. -4- J-A05015-19 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 2/28/2019 -5- . f C rculat $2705! 4..0428 PM IN THE FIFTH JUDICIAL DISTRICT OF THE COMMONWEAL COUNTY OF ALLEGHENY COMMONWEALTH OF PENNSYLVANIA OF PENNSYLVANIA CRIMINAL DI SION CC No. 2014044 5;201416344 Superior Court o. 147WDA2018 vs. GARY EDWARD HOPTON OPINION JUDGE DAVID R. CASHMAN 308 Courthouse 436 Grant Stree Pittsburgh, PA 5219 (412) 350-3905 Copies Sent To: Michael Streily, Esquire (Interoffice) Office of the Dis rict Attorney 4th Floor, Court ouse Pittsburgh, PA 5219 . ·, .. - ·' ,...-:'. rL {''} ···, > :: } l .. - (:.) . ..: U-l ._) -_: -c:e Charles R. Pass III, Esquire (US Mail) 1204 Law & Fin nee Building 429 Fourth Ave ue Pittsburgh, PA 15219 . w IN THE FIFTH JUDICIAL DISTRICT OF THE COMMONWEAL HOF PENNSYLVANIA COUNTY OF ALLEGHENY CRIMINAL DIVISION ) CCNo.20140 475;201416344 ) Superior Cour No. 147WDA2018 COMMONWEALTH OF PENNSYLVANIA vs. GARY EDWARD HOPTON ) OPINION On May 6, 2014, Appellant, Gary Hopton (hereinafter r ferred to as "Hopton"), was charged at CC 201404475 with one count each f DUI - Highest Rate (75 Pa.C.S.A. § 3802(c)), DUI - General Impairment: Accident nvolving Injury or Damage to Property (75 Pa.C.S.A. §§ 3802(a)(l), 3804(b)), DUI - General Impairment (75 Pa.C.S.A. § 3802(a)(l)), and Driving Without License (75 Pa.C.S.A. § 150l(a)), in connection with an incident that occur ed on February 3, 2014. On August 20, 2014, Hopton entered a guilty plea at all our counts, and was thereafter sentenced by this Court, at Count 1, to serve three ( ) days at the Allegheny County Jail to be followed by five (5) months of prob tion. Counts 2 and 3 merged with Count 1 and Hopton received no further penalt at Count 4. Appellant did not file post-sentence motions or a direct appeal ollowing his guilty plea at CC 201404475. On January 22, 2015, Hopton was charged at CC 201416 44 with one count each of DUI - Highest Rate (75 Pa.C.S.A. §§ 3802(c)i 3803(b)(4), DUI - General Impairment: Accident Involving Injury or Damage to Property 75 Pa.C.S.A. §§ 3802(a)(l), 3804(b)), DUI - General Impairment (75 Pa.C.S.A. § 3802(a)(l)), 2 . f Accident Involving Death or Personal Injury (75 Pa.C.S.A. § 3 42(a)), Accident Involving Death or Personal Injury While Not Properly Licen ed (75 Pa.C.S.A. §3742.1 (a)), and three summary traffic offenses, in relation t an incident that occurred on October 6, 2014, while Hopton was serving his pr bation at CC 201404475. On April 17, 2015, Hopton appeared before this Court t CC 201416344 and entered a negotiated guilty plea and was sentenced at Count to serve three (3) years of probation with six (6) months to be served on Interm diate Punishment. Counts 2 and 3 merged with Count 1, Count 4 was withdraw , and Hopton received no further penalty at Counts 5-8. On May 5, 2015, this Court entered a modified Order of Sentence to reflect a change in the amount of restitu ion. Hopton did not file post-sentence motions or a direct appeal following his gui y plea at CC 201416344. On January 4, 2016, this Court found that Hopton viol ted his probation imposed at CC 201416344 and resentenced Hopton at Count to serve two (2) to four (4) years at SCI Camp Hill. Hopton's RRRI minimum se tence in that case was 18 months of incarceration. Also, on January 4, 2016, th s Court found that Hopton had violated his probation at CC 201404475 and ther fore resentenced him, at Count 1, to serve two (2) months to five-and-a-half (5 1/2) onths at SCI Camp Hill. This sentence was to be served consecutively to the sent nee of incarceration imposed at CC 201416344. Hopton's RRRI minimum sentenc at this case was oneand-a-half (1 1/2) months of incarceration. As such, the aggr gate sentence imposed 3 at the two cases for the probation violation was a minimum o two (2) years and two (2) months to a maximum of four (4) years and five-and-a-hal (5 1/2) months of incarceration. Hopton did not file post-sentence motions or a direct a eal following the revocation of his probation. However, on August 17, 2016, H ton filed a prose petition pursuant to the Post Conviction Relief Act (hereinaft r referred to as "PCRA") in relation to both cases. On July 10, 2017, Hopton led an amended PCRA petition and the Commonwealth thereafter filed an an wer to Hopton's PCRA petition. After a hearing on Hopton's PCRA petition, t is Court denied Hopton's requests for PCRA relief by Order dated December 9, 2017. The instant appeal followed. Hopton's concise statement of matters complained of o appeal (hereinafter referred to as "1925(b) statement"), sets forth two claimed err rs. First, Hopton asserts that he is entitled to re-sentencing because, when he nsented to blood tests, he did so under the threat of additional criminal penalti es for refusing such tests. Hopton argues that his consent to blood tests under th eat of additional penalties was unconstitutional under the United States Supr me Court's decision in Birchfield v. North Dakota.1 The second claim raised in Hop ton's 1925(b) statement · s an ineffective assistance of counsel claim. Specifically, Hopton argues that e is entitled to reinstatement of his right to appeal his August 20, 2014, jud Birchfield v. North Dakota, 136 S.Ct. 2160 (2016). 4 ent of sentence at CC 20144475 and April 17, 2015, judgment of sentence at CC 201416344 because his trial counsel failed to advise him that certiorari was pend ng before and/or granted by the United States Supreme Court on the constitut onality of imposing greater criminal penalties for refusal to submit to a chemical est of blood during the time period within which he could have timely commence PCRA proceedings to seek reinstatement of his right to appeal his sentences. Based upon the claims raised in his 1925(b) statement, Hopton is seeking to have this Court's Order denying PCRA relief vacated and req esting that the matter be remanded for re-sentencing in accordance with law The Post-Conviction Relief Act ("PCRA"), codified at 42 Pa.C.S.A. § 9541 et. seq, is intended to, "provide the sole means for obtaining coll eral review and relief, encompassing all other common law rights and remedi s, including habeas -1.1-1..-23 corpu .·" Com. v. Lantzy, 558 Pa. 214l1999); 42 Pa.C.S.A. § 9 2; Com. v. Hall, 565 Pa. 92, 001). The PCRA was enacted to provide collateral re ief to those individuals who are innocent of the crime for which they wer convicted or are serving an unlawful sentence. 42 Pa.C.S.A. § 9542. There is o constitutional right to any post-conviction relief. Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990 (1987). Because the relief afforded to PCRA petitioners is av ilable only, "through the grace of the legislature," the filing of a PCRA petition is s bject to strict jurisdictional rules. Com. v. Alcom, 703 A.2d 1054, 1057 (Pa. uper. 1997); Com. v. Abu-Jamal, 833 A.2d 719, 723-724 (Pa. 2003). 5 Before a court can reach the merits of a PCRA claim, t e petitioner must first show that he is currently serving or waiting to serve a senten e of imprisonment, probation, or parole for the crimes at issue. 42 Pa.C.S.A. § 95 3(a)(l)(i). In addition, any PCRA petition, "including a second or subsequen petition, [must] be filed within one year of the date the judgment becomes final. .. ' 42 Pa.C.S.A. § 9545(b)(l). For purposes of application of the PCRA, "a judgm nt becomes final at the conclusion of direct review, including discretionary review the Supreme Court of the United States and the Supreme Court of Pennsylvania, o at the expiration of time for seeking the review." 42 Pa.C.S.A. § 9545(b)(3). Finally the issues raised in the PCRA petition must not have been previously litigated or w ived. 42 Pa.C.S.A. § 9544(a), (b). An issue has been previously litigated if, "the hi est court in which the petitioner could have had a review as a matter of right has led on the merits of the issue." 42 Pa.C.S.A. § 9544(a)(2). Additionally, an issue i waived, "if the petitioner could have raised it but failed to do so before trial, at rial, during unitary review, on appeal or in a prior state post-conviction proceeding." 42 Pa.C.S.A. § 9544(b). If a PCRA petition satisfies the jurisdictional requirement of the PCRA, a petitioner must plead and prove, by a preponderance of the evide ce, that the conviction or sentence resulted from one or more of the following: 1. A violation of the Constitution of this Commonwealt Constitution or laws of the United States which, int e circumstances of the particular case, so undermined the truth-dete ming process that no reliable adjudication of guilt or innocence co ld have taken place; 6 2. Ineffective assistance of counsel which, in the ci umstances of the particular case, so undermined the truth-determ ning process that no reliable adjudication of guilt or innocence could ave taken place; 3. A plea of guilty unlawfully induced where the ci cumstance make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent; 4. The improper obstruction by government official of the petitioner's right of appeal where a meritorious appealable i sue existed and was properly preserved in the trial court; 5. The unavailability at the time of trial of exculpa ory evidence that has subsequently become available and would have anged the outcome of the trial if it had been introduced; and/or 6. The imposition of a sentence greater than the la ful maximum. A proceeding in a tribunal without jurisdiction. 2 Pa.C.S.A. § 9543(a)(2). As a preliminary matter, Hopton's PCRA petition was ntimely with respect to any claims he seeks to assert concerning his original jud ents of sentence and convictions that followed his guilty pleas on August 20, 2014 nd April 17, 2015. With respect to his conviction at CC 201404475, Hopton was entenced on August 20, 2014, and he did not file a direct appeal from the judgmen of sentence. As such, Hop ton's judgment of sentence became final thirty (30) days l ter on September 19, 2014. Hopton then had one (1) year from that date, or until, eptember 19, 2015, to file for PCRA relief from his original judgment of sentence an conviction. Because Hopton did not file his prose PCRA petition untilAugust 17, 016, his PCRA petition was untimely with respect to any claims that he asse ted in relation to CC 201404475. Similarly, with respect to his conviction at CC 2014163 4, Hopton was sentenced on April 17, 2015, and he did not file a direct appe 7 from the judgment of sentence. Hopton's judgment of sentence therefore became fi al thirty (30) days later, on May 17, 2015. Hopton then had one year from that ate, or until, May 17, 2016, to file for PCRA relief from his original judgment of sen nee and conviction. Because he did not file his prose PCRA petition until August 7, 2016, Hopton's petition was untimely with respect to any claims that Hopton ought to assert concerning his original judgment of sentence and conviction a CC 20141634. With respect to any claims that Hopton asserted in rela ion to the sentence imposed following the revocation of his probation, Hopton met he jurisdictional requirements of the PCRA. He was serving or waiting to serv his sentence of two (2) years and two (2) months to a maximum of four (4) years a d five-and-a-half (5 1/2) months of incarceration imposed by this Courton January 4, 2016, following the revocation of his probation. In addition, Hopton filed his p se PCRA petition within one (1) year of his judgment of sentence becoming final fter the revocation of his probation. Hopton was resentenced by this Court on Jan ary 4, 2016, and did not thereafter file a direct appeal. Thus, Hopton's judgment of entence related to his probation violation became final on February 3, 2016, when is time period to file a timely notice of appeal to the Superior Court expired. Ho ton then had one year from that date, or until February 3, 2017, to file a timely P RA petition based on the revocation of his probation. Hopton therefore timely file his pro se PCRA petition on August 17, 2016. As such, Hopton's PCRA petition as timely with respect to claims related to the sentence imposed following the r vocation of his 8 probation. However, for reasons detailed more fully herein, opton's appeal is meritless, and he is not entitled to the relief. The first claimed error raised by Hopton in the instant appeal relates to the constitutionality of his sentences. Specifically, Hopton assert that he is entitled to have his sentences at CC 201416344 and CC 20144475 vacat d and remanded for resentencing because, when he consented to blood tests, he di so under the threat of additional penalty for refusal. Hopton's constitutional clai is based on the United States Supreme Court's 2016 decision in Birchfield v. orth Dakota, 136 S.Ct. 2160 (2016), in which the Supreme Court held that impl ed consent laws with additional criminal penalties are unconstitutional and a warr nt is required to draw blood. Hop ton's claims related to the unconstitutionalit of his sentence must fail because Hopton's sentence was not illegal and he is note titled to the retroactive application of the rule announced in Birchfield. First, Hopton's sentence is not illegal under Birchfield ecause his judgment of sentence was made final before the Birchfield case was deci ed by the United States Supreme Court in June 2016. Hopton was originally s ntenced at CC 201404475 on August 20, 2014, and at CC 201416344 on Apri 17, 2015. Hopton did not file a direct appeal from the judgment of sentence in eithe case. Furthermore, after the revocation of his probation at both cases, Hopton wa resentenced by this Court on January 4, 2016, and he did not subsequently file a irect appeal from the judgment of sentence in either case. As such, Hopton's judgm nt of sentence from 9 his probation revocation at both cases became final on Febru ry 3, 2016, when his time period to file a timely notice of appeal had expired. Birchfield was decided by the Supreme Court in June 016. Although the Birchfield Court did hold that criminalization of a suspect's r fusal to consent to a blood test violates the Fourth Amendment to the United Stat s Constitutions, the Birchfield case was not decided until several months after Ho ton's judgment of sentence from his probation revocation became final. Thus, opton's sentence was not illegal when imposed by this Court because Birchfield ha not yet been decided at the time at which the sentence was imposed. In addition, Hopton is not entitled to the benefit of the ew rule announced in Birchfield because the rule has not been held to apply retroac ively to cases on collateral review, such as Hopton's case. In Com. v. Moyer, 71 A.3d 849, which was a direct review case, the Superior Court recognized the a iomatic principle that "[iJn Pennsylvania, it has long been the rule that criminal de ndants are not entitled to retroactive application of a new constitutional rule unless they raise and preserve the issue during trial." Id. Moreover, the new rule o law established in Birchfield does not fall under one of the two exceptions to the ule against retroactivity on collateral review set forth in Teague v. Lane, 89 U.S. 288, 307 (1989). Under Teague, for a new rule of constitutional law, ret activity is accorded only to rules deemed substantive in character, and to "waters ed rule of criminal 2 See also Com. v. Moyer, 171 A.3d 849 (Pa.Super. 2017) discussing Birchfield). 10 procedure," which "alter our understanding of the bedrock pr cedural elements" of the adjudicatory process. Teague, 489 U.S. at 311. First, the irchfield decision is not substantive, because it does not prohibit punishment for n entire class of offenders, nor does it decriminalize conduct. Birchfield v. No th Dakota, 136 S.Ct. 2160. Rather, the decision regulates the manner of determini g a defendant's culpability, requiring that the manner of obtaining evidence c ntained within a suspect's blood follow a certain process. Id. It does not auto atically invalidate all convictions where a defendant refused a blood draw, only tho e where a defendant was threatened with an enhanced criminal penalty. Id. Even where a procedural error has infected a trial, the esulting conviction or sentence may still be valid, and, by extension, the defendant' continued confinement may still be lawful. Montgomery v. Louisiana, 1 6 S. Ct. 718, 730 (2016). For this reason, a trial conducted under a procedure f und to be unconstitutional in a later case does not, as a general matter, ave the automatic consequence of invalidating a defendant's conviction or sente ce. Id. Because the Supreme Court's decision in Birchfield does not announce an xtraordinary, watershed rule of criminal procedure, Hopton's sentence was ot invalidated by Birch{ield and should not be disturbed. The second claim raised in Hopton's 1925(b) statement s that he is entitled to reinstatement of his right to appeal his August 20, 2014 an April 17, 2015, sentences because his trial counsel failed to advise him that irchfield was was pending before the United States Supreme Court. Hopton ar ues that, had he been 11 advised of the fact that Birchfield was pending, he could have timely commenced PCRA proceedings to seek reinstatement of his right to appe said sentences. In order to prevail on a claim of ineffectiveness of coun el under the PostConviction Relief Act, a petitioner must plead and prove, by a preponderance of the evidence, that: (1) the underlying issue has arguable merit; ( counsel's actions lacked an objective reasonable basis; and (3) actual prejudice esulted from counsel's act or failure to act. Com. v. Pander, 100 A.3d 626, 30-631 (Pa.Super. 2014) (en bane) (internal citations and quotations omitted). here the petitioner fails to plead or meet any of these elements, his claim must f ·1. Id. A claim has arguable merit where the factual avermen s, if accurate, could establish cause for relief. Id. Whether the facts rise to the le el of arguable merit is a legal determination. Id. The test for deciding whether cou sel had a reasonable basis for his action or inaction is whether no competent couns 1 would have chosen that action or inaction, or, the alternative, not chosen, offered a significantly greater potential chance of success. Id. Counsel's decisions will be co sidered reasonable if those decisions effectuated his or her client's interests, and co rts will not employ a hindsight analysis in comparing trial counsel's actions with o her efforts he may have taken. Id. Prejudice is established only if there is a rea onable probability that, but for counsel's errors, the result of the proceeding wou d have been different. Id. A reasonable probability is a probability sufficient to und rmine confidence in the outcome. Id. 12 In the instant appeal, Hopton argues that his counsel as ineffective for failing to advise him that, "certiorari was pending before and r granted by the United States Supreme Court on the constitutionality of imp ing greater criminal penalties for refusal to submit to a chemical test of blood dur ng the time period in which Defendant could have timely commenced PCRA procee ings to seek reinstatement of his right to appeal said sentences." However like his constitutional claim, Hopton's ineffectiveness of counsel claim is baseless and does not entitle him to relief. Hopton has neither alleged, nor prov n, that his counsel improperly advised him concerning the state of the law at the time at which he plead guilty. Furthermore, Hopton cannot sustain his burden for establishing ineffective assistance of counsel on the basis that his counsel iled to predict changes in the law. Hopton was sentenced at CC 201404475 on August 20, 014, and was subsequently sentenced at CC 201416344 on April 17, 2015. he United States Supreme Court did not grant certiorari in Birchfield until Dec mber 11, 2015, and Birchfield was not decided until June 23, 2016. Accordingly, t the time at which Hopton pled guilty, the Supreme Court had not yet granted ce tiorari, much less decided the case. Accordingly, to the extent that Hopton relie on Birchfield to support his ineffective assistance of counsel claim, he has not roven that his counsel improperly advised him concerning the state of the la he entered his plea. 13 at the time at which Hopton is ostensibly arguing that his trial counsel sho Id have possessed the foresight to determine that: (1) the Supreme Court was going o grant certiorari in Birchfield; and (2) the Supreme Court would then issue a ne rule of law in Birchfield which would apply to his case. As the Pennsylvani Supreme Court has made clear, "[ijt is well-settled that counsel cannot be deeme ineffective for failing to predict changes in the law. Com. v. Cousar, 154 A.3d 287, 03 (Pa. 2017). As such, Hopton's counsel was not ineffective for allowing him to plead guilty where Birchfield had not yet been decided, and Hopton is not entitle to relief on this basis. BY THE COURT: ___c. __z__ ._ ..,_ _.._.__ -....Y:H DATED: /ofa,;./;g 14 .J.

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