COMMONWEALTH of Pennsylvania, Appellee v. Anthony Edward OLIVER, Appellant.
1277
Superior Court of Pennsylvania.
Submitted Oct. 26, 2015. Filed Dec. 14, 2015.
128 A.3d 1275
BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.
For all of the foregoing reasons, I respectfully dissent.
Judge DONOHUE and Judge SHOGAN join this dissenting opinion.
Risa V. Ferman, District Attorney, Norristown, for Commonwealth, appellee.
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),
On February 21, 2012, Appellant pled guilty to the offense of theft by deception,
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.
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 recharacterize[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(1)(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
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.
“In 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
* * *
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
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 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.
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.
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, 555 Pa. 285, 724 A.2d 319, 321 (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.”
Nevertheless, Appellant‘s claim lacks merit. We acknowledge that:
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, 566 U.S. 134, 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, 626 Pa. 683, 95 A.3d 276 (2014).
However, “[t]he granting and rescinding of parole are purely administrative functions.” Rivenbark v. Com., Pennsylvania Bd. of Prob. & Parole, 509 Pa. 248, 501 A.2d 1110, 1112 (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.” Commonwealth v. Brown, 451 Pa.Super. 514, 680 A.2d 884, 887 (1996).
One such exception to this collateral consequence doctrine was recognized in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (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 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
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.
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, 118 S.Ct. 1352, 140 L.Ed.2d 529 (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, 118 S.Ct. 1352. 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 equal 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 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
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).
* * *
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 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, 609 Pa. 442, 17 A.3d 297, 301 (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, 612 Pa. 183, 30 A.3d 426, 439 (2011).
Appellant contends that Attorney Carluccio was ineffective for filing a Turner/Finley 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
Order affirmed.
Judge DONOHUE joins this opinion.
Judge MUNDY files a concurring statement.
CONCURRING STATEMENT BY MUNDY, J.:
Although I agree with the learned Majority that the PCRA courts’ order must be affirmed, I reach this conclusion for different reasons. In my view, Appellant waived all issues on appeal by failing to file, as ordered, a concise statement of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Therefore, I respectfully concur in the result.
Our Supreme Court has held that Rule 1925(b) is a bright line rule. Commonwealth v. Hill, 609 Pa. 410, 16 A.3d 484, 494 (2011). The Hill Court was clear that this Court “lack[s] the authority to countenance deviations from the Rule‘s terms [and] the Rule‘s provisions are not subject to ad hoc exceptions or selective enforcement[.]” Id. In my respectful view, the Majority‘s declining to apply Hill‘s bright-line rule to this case represents an ad hoc exception to the Rule‘s requirements. I also disagree with the Majority‘s conclusion that “[h]ad 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 under Rule 1925(c)(3)[.]” Majority Opinion at 5. The Hill Court rejected the attempt to apply Rule 1925(c)(3) in the PCRA context. Our Supreme Court noted the remand procedure in Rule 1925(c)(3) speaks of ineffective assistance of counsel in a “criminal case.” Pa.R.A.P. 1925(c)(3). Therefore, because “the PCRA is civil in nature[,]” it concluded that Rule 1925(c)(3) did not apply. Hill, supra at 495 n. 14.
In this case, it is undisputed that Appellant did not file a Rule 1925(b) statement, nor did he apply for an extension of time to file the same once the PCRA court permitted Attorney Carluccio to withdraw as counsel. See generally Majority Opinion at 1279; Pa.R.A.P. 1925(b)(2) (stating, “[u]pon application of the appellant and for good cause shown, the judge may enlarge the time period initially specified or permit an amended or supplemental Statement to be filed[ ]“). In my view, our Supreme Court‘s interpretation of Rule 1925 requires the conclusion, although harsh, that Appellant has waived all issues on appeal for failure to take any steps to comply with Rule 1925(b).
Based on the foregoing, I conclude that Appellant waived all issues on appeal for want of compliance with Hill and Rule 1925(b). Accordingly, I would affirm the PCRA court‘s order on that basis. I therefore respectfully concur in the result only.
VICTOR P. BENDER
PRESIDENT JUDGE EMERITUS