Com. v. Oliver, A. ( 2019 )

J-A13014-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY EDWARD OLIVER :
:
Appellant : No. 1126 EDA 2018
Appeal from the Judgment of Sentence August 22, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0011716-2011,
CP-51-CR-0011718-2011
BEFORE: SHOGAN, J., NICHOLS, J., and STRASSBURGER*, J.
JUDGMENT ORDER BY SHOGAN, J.: FILED AUGUST 14, 2019
Appellant, Anthony Edward Oliver, appeals nunc pro tunc from the
judgments of sentence entered August 22, 2016, following his entry of
negotiated pleas of nolo contendere to two counts each of burglary and
conspiracy.1 We transfer this case to the Commonwealth Court of
Pennsylvania.
On June 24, 2011, Appellant was charged with thefts of computers on
June 3, 2011, and June 10, 2011, from a laboratory on the campus of the
University of Pennsylvania (“University”). N.T., 8/22/16, at 29–32. A
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1 18 Pa.C.S. §§ 3502(a) and 903, respectively. Pursuant to the negotiated
plea, the Commonwealth nol prossed charges of trespass, theft, and receiving
stolen property. N.T., 8/22/16, at 17.
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* Retired Senior Judge assigned to the Superior Court.
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University employee used card-swipe information to grant Appellant access to
the building and keys to grant him access to the lab. Id. at 32. On August
22, 2016,2 Appellant pled nolo contendere as described above and was
sentenced to two and one-half to five years of imprisonment for each offense.
The sentences were imposed concurrent to each other and concurrent to any
other sentence already being served. Sentencing Orders, 8/22/16.
Appellant filed a counseled untimely appeal on September 27, 2016,
which we quashed on November 21, 2016. Following the filing of a petition
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546,
and the appointment of counsel, the PCRA court reinstated Appellant’s direct
appeal rights nunc pro tunc on March 2, 2018. Appellant filed a timely notice
of appeal; both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant asserts that his sentence is illegal because the Pennsylvania
Department of Corrections (“DOC”) caused it to run consecutively, rather than
concurrently, to the sentence he was serving. Appellant’s Brief at 3, 11. We
note that challenges to the computation of time, as here, should be raised in
an original action in the Commonwealth Court. Commonwealth v. Wyatt,
115 A.3d 876, 879 (Pa. Super. 2015); see also Commonwealth v. Perry,
563 A.2d 511, 512–513 (Pa. Super. 1989) (calculation of time is determined
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2 Between 2011 and 2016, Appellant initially sought a jury trial, entered guilty
pleas on August 11, 2015, and was permitted to withdraw the pleas on
October 20, 2015.
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by the DOC, and any challenge to the DOC’s computation must be brought in
an original action in the Commonwealth Court). Here, Appellant alleges that
the DOC “failed to abide by the sentencing Orders that were issued by the
sentencing Judge . . . .” Appellant’s Brief at 16. Accordingly, this claim must
be pursued through an original action in the Commonwealth Court. Perry,
563 A.2d at 512.3
Appellant’s second issue asserts instances of ineffective assistance of
counsel. Absent certain circumstances, “claims of ineffective assistance of
counsel are to be deferred to PCRA review; . . . such claims should not be
reviewed upon direct appeal.” Commonwealth v. Holmes, 79 A.3d 562,
576 (Pa. 2013) (footnote omitted); Commonwealth v. Grant, 813 A.2d 726
(Pa. 2002). There are three exceptions to the general deferral rule.
The first exception, . . . affords trial courts discretion to entertain
ineffectiveness claims in extraordinary circumstances where a
discrete claim of trial counsel ineffectiveness is apparent from the
record and meritorious to the extent that immediate consideration
best serves the interests of justice. The second exception . . .
gives trial courts discretion to address ineffectiveness claims on
post-sentence motions and direct appeal if there is good cause
shown and the defendant knowingly and expressly waives his
entitlement to seek subsequent PCRA review of his conviction and
sentence.
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3 We are mindful that where neither party has objected to our jurisdiction of
an appeal, we may exercise jurisdiction pursuant to 42 Pa.C.S. § 704(a) and
Pa.R.A.P. 741(a). However, we also “retain the power and, indeed, the
responsibility to determine whether retention of jurisdiction in this case is
appropriate or, alternatively, whether the matter should be transferred to the
Commonwealth Court.” Wilson v. School District of Philadelphia, 600
A.2d 210, 211 (Pa. Super. 1991) (citations omitted). In the instant case, the
Commonwealth has objected to our jurisdiction. Commonwealth’s Brief at 5.
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Commonwealth v. Delgros, 183 A.3d 352, 360 (Pa. 2018) (citations
omitted). The third exception requires “trial courts to address claims
challenging trial counsel’s performance where the defendant is statutorily
precluded from obtaining subsequent PCRA review.” Id. at 361. Because this
is a direct appeal nunc pro tunc from the judgment of sentence, and none of
the exceptions to Grant applies herein, Appellant’s claims of ineffective
assistance of counsel must be deferred to collateral review.
Appeal transferred to Commonwealth Court. Appellant’s claims of
ineffective assistance of counsel are dismissed without prejudice to raise them
in a PCRA petition. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/14/19
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