Commonwealth v. Oliver

J-S68003-15

2015 PA Super 261

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

ANTHONY EDWARD OLIVER,

Appellant No. 629 EDA 2014

Appeal from the PCRA Order February 7, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0005530-2011

BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.

OPINION BY BENDER, P.J.E.: FILED DECEMBER 14, 2015

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
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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.

____________________________________________

1
Commonwealth v. Turner, 544 A.2d 297 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
2
Although Attorney Carluccio’s no merit letter appears to have been
docketed on January 31, 2014, the letter itself is dated May 14, 2013. It is
apparent from references made to the no merit letter in the PCRA court’s
Rule 907 order that the court was in possession of the no merit letter when
the Rule 907 order was issued. However, Attorney Carluccio’s petition to
withdraw was clearly not filed until after the PCRA court issued the Rule 907
order, as Attorney Carluccio’s petition to withdraw references that order.
Despite these irregularities, Appellant does not contest the PCRA court’s
acceptance of Attorney Carluccio’s no merit letter and petition to withdraw in
his brief, nor has Appellant argued or preserved a claim challenging PCRA
counsel’s stewardship. Appellant did file a motion for an extension of time
to file a response to the PCRA court’s Rule 907 order; however, Appellant
does not claim in his brief that the PCRA court erred by not granting him an
extension.

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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?

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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, 719 A.2d
[306,] 309 [(Pa. 1998)] (emphasis added). Thus, waiver under
Rule 1925 is automatic.

Commonwealth v. Butler, 812 A.2d 631, 633 (Pa. 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,

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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.”).

____________________________________________

3
Attorney Carluccio also filed with this Court a petition for leave to withdraw
his appearance on March 7, 2014. We issued an order on March 31, 2014,
stating that “in light of the PCRA court’s March 4, 2014 order[,] counsel’s
appearance is withdrawn.” See Order, 3/31/14, at 1 (single page).

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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.

____________________________________________

4
Vienna Convention on Consular Relations, Apr. 24, 1963, [1970] 21 U.S.T.
77, T.I.A.S. No. 6820 (“Vienna Convention”).
5
Convention, with protocol of signature, signed at Washington June 6, 1951,
T.I.A.S. No. 2494 (Sept. 7, 1952) (“Bilateral Agreement”).

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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

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provide this court with any meaningful analysis of existing authorities as to

how that translates into a right to withdraw his guilty plea based on a

violation of those authorities. Clearly, Appellant has a right to consular

notification under those agreements. Thus, if consular notification was the

only relief he were seeking in the Motion, there is a plausible argument that

it was not properly characterized as a PCRA petition. However, Appellant did

not even request consular notification in the Motion.

Additionally, the Supremacy Clause of the United States Constitution

dictates that, “Treaties made, or which shall be made, under the Authority of

the United States, shall be the supreme Law of the Land; and the Judges in

every State shall be bound thereby, any Thing in the Constitution or Laws of

any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. Thus,

a violation of a binding international treaty by state authorities constitutes a

violation of the United States Constitution’s Supremacy clause. The PCRA

encompasses such claims, as it provides the opportunity for relief where a

conviction or sentence resulted from “[a] violation of the Constitution of this

Commonwealth or the Constitution or laws of the United States ….” 42

Pa.C.S. § 9543(a)(2)(i). Moreover, this Court has previously addressed

consular notification claims that arise under the Vienna Convention within

the context of the PCRA without reservation regarding the PCRA’s authority

to do so. See Commonweatlh v. Quaranibal, 763 A.2d 941 (Pa. Super.

2000) (rejecting a consular notification claim arising under the Vienna

Convention because the petitioner failed to raise the claim in a prior

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proceeding and, alternatively, because the petitioner failed to demonstrate

prejudice from the violation).

In sum, we conclude that there is no merit to Appellant’s claim that

the PCRA court erred when it construed the Motion as a PCRA petition. As

presented, Appellant’s treaty-based claim was cognizable under the PCRA.

***

Next, Appellant claims that the Commonwealth breached the terms of

his negotiated plea agreement. Appellant argues that the conditions placed

on his eligibility for parole by the Department of Corrections (“DOC”) were

not made known to him when he negotiated his plea with the

Commonwealth. Specifically, Appellant complains that prior to certifying him

eligible for parole, the DOC requires him to complete ‘mandatory’ GED

classes.6 Appellant also claims that when he declined to participate in a

voluntary “violence prevention forensic treatment” program run by the DOC,

he was told that his decision to not participate would adversely affect his

eligibility for parole. Id. Appellant construes these matters as “additional

sentencing requirements” that were not made known to him at the time he

negotiated a plea agreement with the Commonwealth. Id. at 19.

____________________________________________

6
This is particularly irksome to Appellant because it is undisputed that he
acquired advanced degrees “both in the United States and the United
Kingdom[,]” including a Ph.D. Appellant’s Brief, at 18.

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The PCRA court found that “[s]ince there is no right to parole, the

enforcement of mandatory education requirement is not a violation of

[Appellant]’s rights.” PCO, at 7 (citing Rogers v. Pa. Bd. of Prob. &

Parole, 724 A.2d 319, 321 (Pa. 1999)). Similar logic would apply to the

non-mandatory violence prevention program. We agree with the PCRA court

that Appellant is not entitled to withdraw his plea on this basis.

We also note that Appellant did not attempt to raise this claim in a

post-sentence motion or on direct appeal. Section 9543(a)(3) of the PCRA

provides that, to be eligible for relief under the statute, a petitioner must

plead and prove that “the allegation of error has not been previously

litigated or waived.” 42 Pa.C.S. § 9543(a)(3). “An issue is waived if [a

petitioner] could have raised it but failed to do so before trial, at trial, ... on

appeal or in a prior state post[-]conviction proceeding.” Commonwealth v.

Robinson, 82 A.3d 998, 1005 (Pa. 2013) (quotation marks omitted); 42

Pa.C.S. § 9543(a)(3). In this case, however, Appellant was almost certainly

not aware of the DOC’s requirements and recommendations within the short

period of time that he had to file a post-sentence motion or direct appeal

from his sentence. Accordingly, we conclude that he could not have raised

this claim in a prior proceeding, because the purported breach of the

negotiated plea agreement does not appear to have been ascertainable at an

earlier time.

Nevertheless, Appellant’s claim lacks merit. We acknowledge that:

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The reality of the criminal justice system is that nearly all
criminal cases are disposed of by plea bargains: “[n]inety-seven
percent of federal convictions and ninety-four percent of state
convictions are the result of guilty pleas.” Missouri v. Frye, ––
– U.S. ––––, 132 S.Ct. 1399, 1407, 182 L.Ed.2d 379 (2012)
(internal citations omitted). Plea bargaining “is not some
adjunct to the criminal justice system; it is the criminal justice
system.” Id. Accordingly, it is critical that plea agreements are
enforced, “to avoid any possible perversion of the plea
bargaining system.” Commonwealth v. Fruehan, 384
Pa.Super. 156, 557 A.2d 1093, 1094 (1989) (internal citations
omitted).

Commonwealth v. Hainesworth, 82 A.3d 444, 449 (Pa. Super. 2013),

appeal denied, 95 A.3d 276 (Pa. 2014).

However, “[t]he granting and rescinding of parole are purely

administrative functions.” Rivenbark v. Com., Pennsylvania Bd. of Prob.

& Parole, 501 A.2d 1110, 1112 (Pa. 1985). “Parole is a penological

measure for the disciplinary treatment of prisoners who seem capable of

rehabilitation outside the prison walls; it does not affect the sentence.”

Id. at 1112 (emphasis added). With limited exceptions, “a defendant's lack

of knowledge of collateral consequences to the entry of a guilty plea does

not render a plea unknowing or involuntary.” Commowneatlh v. Brown,

680 A.2d 884, 887 (Pa. Super. 1996).

One such exception to this collateral consequence doctrine was

recognized in Padilla v. Kentucky, 559 U.S. 356 (2010), where the

Supreme Court of the United States held that the risk of deportation is a

collateral consequence of such gravity that counsel is required to advise a

client who is contemplating entering a guilty plea that doing so could result

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in the commencement of deportation proceedings. However, Appellant has

not cited any existing exception that is applicable to his situation, and we do

not believe that the DOC policies implicated in this case are of comparable

gravity to the collateral consequences of the deportation issue addressed in

Padilla. Accordingly, we conclude that Appellant’s second claim lacks merit.

***

Next, Appellant asserts that the Commonwealth failed to provide him

with consular notification and access under the Vienna Convention and/or

the Bilateral Agreement. Notably, in his brief, Appellant does not even

assert what relief to which he is ostensibly entitled with respect to this claim.

Presumably, however, in accordance with the Motion, Appellant wishes to

use the violation of these treaties as the basis for the withdrawal of his guilty

plea. In any event, we conclude that this claim has been waived due to

Appellant’s failure to raise it in a prior proceeding.

A similar claim was asserted in Quaranibal. Therein, the appellant, a

citizen of El Salvador, argued that he was entitled to a new trial on the basis

that he was not afforded his right to consular notification under the Vienna

Convention. The Quaranibal Court rejected the claim, applying Section

9543(a)(3) of the PCRA, because “the right of consular notification, which by

the terms of the Vienna Convention attaches upon arrest, could have been

raised before trial, at trial, or on direct appeal. The issue was not raised at

any of these points.” Quaranibal, 763 A.2d at 944.

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Appellant argues that he “cannot ‘waive’ or ‘forfeit’ [the]

Commonwealth’s obligation or duty under” the Vienna Convention and/or the

Bilateral Agreement, “where [the] Commonwealth has an affirmative

obligation under both compacts[.]” Appellant’s Brief, at 25. We disagree.

As the Quaranibal Court noted, “the United States Supreme Court has

plainly stated that a treaty does not trump procedural rules.” Quaranibal,

763 A.2d at 944 (citing Breard v. Greene, 523 U.S. 371 (1998)). In

Breard, the Supreme Court of the United States opined, in its discussion of

rights arising under the Vienna Convention, that “it has been recognized in

international law that, absent a clear and express statement to the contrary,

the procedural rules of the forum State govern the implementation of the

treaty in that State.” Breard, 523 U.S. at 375. Although the High Court

was discussing a different rule, “that assertions of error in criminal

proceedings must first be raised in state court in order to form the basis for

relief in [federal] habeas,” the Court’s reasoning applies with equally force to

the instant matter. Id. In Pennsylvania, the analogous procedural rule at

issue in this case is Section 9543(a)(3) of the PCRA.

Thus, Appellant is not relieved of his own responsibility to claim a

violation of his rights under the Vienna Convention within the framework of

Pennsylvania’s procedural rules merely because the obligation of consular

notification rests with the Commonwealth. Similarly, the Commonwealth is

also obliged not to conduct searches and seizures in violation of the Fourth

Amendment to the United States Constitution. However, a defendant’s

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failure to raise such a claim in a suppression motion will also result in the

waiver of that suppression claim during collateral review pursuant to Section

9543(a)(3).7 Appellant’s rights, whether they arise under a treaty or under

the Constitution, are subject to the same procedural rules, and those rules

dictate that the party asserting a right must assert their claim in a timely

manner. Therefore, we conclude that Appellant’s third claim is waived.

***

For Appellant’s fourth claim, he asserts that his trial counsel was

ineffective for “failing to conduct a full investigation of his case and

background[,]” and for “failing to advise Appellant of [the] deportation

consequences of pleading guilty.” Appellant’s Brief, at 26. It is apparent

from our review of the record that this claim has been waived.

Our appellate rules dictate that “[i]ssues not raised in the lower court

are waived and cannot be raised for the first time on appeal.” Pa.R.A.P.

302(a). Instantly, in the Motion, Appellant neither raised this claim nor any

other ineffective assistance of counsel issue. Furthermore, Appellant never

sought to amend the Motion to include such a claim. Accordingly, we are

constrained to find this claim has been waived pursuant to Rule 302(a).
____________________________________________

7
The exception to this rule is where the claim is couched in terms of trial
counsel’s ineffectiveness. However, “ineffectiveness claims are distinct from
those [underlying] claims that are raised on direct appeal” because “[t]he
former claims challenge the adequacy of representation rather than the
conviction of the defendant.” Commonwealth v. Collins, 888 A.2d 564,
573 (Pa. 2005).

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***

Finally, Appellant asserts an ineffectiveness claim concerning PCRA

counsel’s stewardship of the Motion. We decline to find this claim waived

due to Appellant’s failure to raise it in the PCRA court.8 Nevertheless, the

claim lacks merit.

We review ineffective assistance of counsel claims under the following

standard:

We begin with the presumption that counsel rendered effective
assistance. To obtain relief on a claim of ineffective assistance
of counsel, a petitioner must rebut that presumption and
demonstrate that counsel's performance was deficient, and that
such performance prejudiced him. Strickland v. Washington,
466 U.S. 668, 687–91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
In our Commonwealth, we have rearticulated the Strickland
Court's performance and prejudice inquiry as a three-prong test.
Specifically, a petitioner must show: (1) the underlying claim is
of arguable merit; (2) no reasonable basis existed for counsel's
action or inaction; and (3) counsel's error caused prejudice such
that there is a reasonable probability that the result of the
____________________________________________

8
Typically, the first opportunity to challenge PCRA counsel’s ineffectiveness,
when that attorney has filed a Turner/Finley no-merit letter, occurs in
response to a PCRA court’s reliance on a no-merit letter in a Pa.R.Crim.P.
907 notice. See Commonwealth v. Pitts, 981 A.2d 875, 880 n.4 (Pa.
2009). As noted previously, in this case, the PCRA court did not officially
accept Attorney Carluccio’s Turner/Finley letter, and permit him to
withdrawal, until after Appellant was ordered to file a Rule 1925(b)
statement. Also noted previously, we decline to find Lord/Butler waiver
based on Appellant’s failure to file a Rule 1925(b) Statement in the unique
circumstances of this case. Moreover, Appellant did attempt to respond to
the PCRA Court’s Rule 907 notice, but was denied his request for an
extension of time. Given the confluence of these circumstances, it would be
unjust to find waiver. Appellant’s brief was the first practical opportunity he
had to challenge PCRA counsel’s stewardship of the Motion.

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proceeding would have been different absent such error.
Commonwealth v. Pierce, 515 Pa. 153, 158–59, 527 A.2d
973, 975 (1987).

Commonwealth v. Dennis, 17 A.3d 297, 301 (Pa. 2011) (some internal

citations omitted). “A claim of ineffectiveness will be denied if the

defendant's evidence fails to meet any one of these prongs.”

Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2011).

Appellant contends that Attorney Carluccio was ineffective for filing a

Turner/Finely no-merit letter with respect to Appellant’s claim that his plea

agreement had been breached by the DOC’s GED education requirement. As

discussed above, we found that this underlying claim lacked merit, because

the DOC policies regarding the requirements for parole were collateral

consequences of Appellant’s conviction and sentence, not bargained-for

terms of his plea agreement. Therefore, Appellant has failed to establish the

first prong of his ineffectiveness claim. Consequently, his fifth claim lacks

merit.

Order affirmed.

Judge Donohue joins this opinion.

Judge Mundy files a concurring statement.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/14/2015

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