Commonwealth v. Oliver

128 A.3d 1275

2015 PA Super 261

COMMONWEALTH of Pennsylvania, Appellee

v.Anthony Edward OLIVER, Appellant.

Superior Court of Pennsylvania.

Filed Dec. 14, 2015.

Submitted Oct. 26, 2015.

Anthony E. Oliver, appellant, pro se.

Risa V. Ferman, District Attorney, Norristown, for Commonwealth, appellee.

Opinion

OPINION BY BENDER, P.J.E.:

Appellant, Anthony Edward Oliver, appeals pro se from the post conviction court's February 7, 2014 order denying his petition for relief filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541–9546. After careful review, we affirm.

On February 21, 2012, Appellant pled guilty to the offense of theft by deception, 18 Pa.C.S. § 3922, and was contemporaneously sentenced by the trial court to a term of 2–5 years' incarceration for that offense. Appellant was charged in connection to his drafting of a bad check on February 18, 2011, from a bank account that had been closed two months' prior. Appellant used that fraudulent check to purchase thousands of dollars' worth of diving equipment from a business in Montgomery County. Appellant did not file a direct appeal.

On February 14, 2013, Appellant filed a document titled, “MOTION CHALLENGING VALIDITY OF PLEA” (hereinafter, “the Motion”). By order dated February 25, 2013, the PCRA court construed the Motion as a PCRA petition and appointed Thomas Carluccio, Esquire, to represent Appellant as PCRA counsel. Attorney Carluccio subsequently filed a Turner/Finley¹ “no merit” letter and a motion to withdraw representation, and the PCRA court issued a notice of its intent to dismiss the Motion pursuant to Pa.R.Crim.P. 907 on January 10, 2014.² The trial court ultimately issued a final order denying the Motion on February 7, 2014.

Appellant filed a timely, pro se notice of appeal, and now presents the following questions for our review:

[I.] Did the lower court err when it re-characterize[d] Appellant's Motion Challenging Validity of Plea as a petition for relief under the Post–Conviction Relief Act (“PCRA”); 42 Pa.C.S. §§ 9541–9546, where [the] Commonwealth's failure to provide consular notification and access pursuant to Article 36(l ) (b) of the Vienna Convention on Consular Relations, and the Pennsylvania Department of Corrections[ ] acknowledged imposition of additional sentencing conditions as a requirement for parole under that agreement, as well as the DOC's admitted destruction of exculpatory evidence and legal materials in active criminal trial and appellate matters, did not implicate any of the available remedies under the PCRA statute?

[II.] Did the lower court err when, for the first time on appeal, Appellant alleged that the Commonwealth breached the plea agreement, where allegations of breach entitled Appellant to an evidentiary hearing as a matter of law, as [the] claims were not “palpably incredible” or “patently frivolous or false” on their face nor clearly refuted by the record, and where Appellant's claims were substantiated by state agency records?

[III.] Did [the] Commonwealth fail to comply with its mandatory duty to provide Appellant with consular notification and access under Article 36(1)(b) of the Vienna Convention and [A]rt. 16(1) of the Bilateral Agreement between the United States of America and the United Kingdom (UK), where Appellant is a citizen of the UK, and where Appellant was already in the custody of the DOC and had been interviewed by immigration agents before he was conveyed to Montgomery County?

[IV.] Was trial counsel ineffective, where counsel failed to conduct a full investigation of Appellant's case and background after being advised of extenuating circumstances by Appellant, and for failing to advise Appellant of the deportation consequences of pleading guilty?

[V.] Was appellate counsel ineffective, where counsel failed to conduct a full investigation of Appellant's case and background after being advised of extenuating circumstances by Appellant, where counsel was unfamiliar with federal and international law as it related to Appellant's case?

Appellant's Brief, at 4–5.

We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court's decision on any grounds if the record supports it. Further, we grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Where the petitioner raises questions of law, our standard of review is de novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super.2012) (internal citations omitted).

Initially, we note that Appellant failed to file a Pa.R.A.P.1925(b) statement of errors complained of on appeal, despite being ordered by the PCRA court to do so. See Order, 2/27/14, at 1 (single page). On this basis alone, we could find that Appellant waived all of the above claims of error.

“[I]n order to preserve their claims for appellate review, [a]ppellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to Rule 1925. Any issues not raised in a 1925(b) statement will be deemed waived.” [Commonwealth v.] Lord 553 Pa. 415, 719 A.2d 306, 309 [ (Pa.1998) ] (emphasis added). Thus, waiver under Rule 1925 is automatic.

Commonwealth v. Butler, 571 Pa. 441, 812 A.2d 631, 633 (2002).

However, our review of the record below indicates that Appellant was still represented by Attorney Carluccio at the time the PCRA court issued its order for him to file a Rule 1925(b) statement. Indeed, the PCRA court did not grant Attorney Carluccio's petition for leave to withdraw until March 4, 2014. See Order, 3/4/14, at 1 (single page).³ Following the order granting Attorney Carluccio leave to withdraw, the PCRA court made no further efforts to inform Appellant of his responsibility to file a Rule 1925(b) statement.

Given the irregularities in the PCRA court's treatment of Attorney Carluccio's Turner/Finley no-merit letter and corresponding petition for leave to withdraw as Appellant's counsel (the PCRA court ideally would have accepted the no-merit letter and granted corresponding petition for leave to withdraw prior to or contemporaneous to the order denying the Motion on February 7, 2014), we decline to apply Lord/Butler waiver in the very limited and narrow circumstances of this case. Had Appellant's counsel been solely responsible for the failure to file a Rule 1925(b) statement on Appellant's behalf, Appellant would have been entitled to a remand for the filing of a Rule 1925(b) statement pursuant to Rule 1925(c)(3) (“If an appellant in a criminal case was ordered to file a Statement and failed to do so, such that the appellate court is convinced that counsel has been per se ineffective, the appellate court shall remand for the filing of a Statement nunc pro tunc and for the preparation and filing of an opinion by the judge.”).

Nevertheless, we find it unnecessary to remand for the filing of a pro se Rule 1925(b) statement because 1) Appellant has not requested such relief; and 2) the PCRA court issued a Rule 1925(a) opinion which provides us with sufficient information to address any claim not specifically addressed in that opinion.

* * *

Appellant's first claim concerns the PCRA court's decision to construe the Motion as a PCRA petition. Appellant contends that the PCRA court erred in this regard because he believes the PCRA does not provide a remedy for treaty violations. Appellant contends that he has been denied his rights under the Vienna Convention on Consular Relations,⁴ and a bilateral treaty between the United States and the United Kingdom.⁵ Specifically, Appellant argues that the arresting authority in this case, the Montgomery County Police Department (MCPD), failed to provide him “with notice of his rights to consular notification and access” under the Vienna Convention and the Bilateral Agreement. After careful review, we disagree that Appellant's claim for relief was not cognizable under the PCRA.

As noted above, Appellant did not file a Rule 1925(b) statement and, consequently, the PCRA court did not expressly address this claim as Appellant presents it in his brief. The PCRA court's opinion did reject Appellant's claims under the Vienna Convention and Bilateral Agreement because 1) Appellant failed to raise it at the time of his plea or during his direct appeal; and because 2) on the merits, Appellant made “misleading statements regarding his nationality and [due] to his own failure to request consultation with the British consulate[.]” PCRA Court Opinion (PCO), 4/8/2014, at 6. Thus, the PCRA court did not reject Appellant's treaty-related claims on the basis that they were not cognizable claims under the auspices of the PCRA.

Notably, Appellant's treaty-related arguments were not stand-alone claims for specific relief under those agreements. Indeed, Appellant did not appear to be seeking consular assistance so much as he was seeking to withdraw his guilty plea premised on the MCPD's failure to notify the British consulate on his behalf. The PCRA clearly encompasses claims that arise where a guilty plea is unlawfully induced. See 42 Pa.C.S. § 9543(a)(2)(iii) (stating relief is available under the PCRA where “the conviction or sentence resulted” from “[a] plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent”).

Although Appellant contends that the Vienna Convention and the Bilateral Agreement provide him with a private right of action, he does not provide this court with any meaningful analysis of existing authorities as to how that translates into a right to...