Commonwealth v. Oliver

128 A.3d 1275, 2015 Pa. Super. 261, 2015 Pa. Super. LEXIS 809, 2015 WL 8708004
Superior Court of Pennsylvania·Decided December 14, 2015·No. 629 EDA 2014·Published·Cited by 36 cases

Opinions

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 Tumer/Fin-ley1 “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. [1278]*1278907 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-characterized 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 arid access pursuant to Article 36(7 )(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 eviden-tiary 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(l)(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 [1279] favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of reeord. 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 deférence 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 bn appéal, 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 Car-luccio’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.

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Commonwealth v. Oliver, 128 A.3d 1275, 2015 Pa. Super. 261, 2015 Pa. Super. LEXIS 809, 2015 WL 8708004 (Pa. Ct. App. 2015).

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