The opinion of the court was delivered by: Mitchell, M.J.
Arnold Sebastion Carver has presented a petition for a writ of habeas corpus. For the reasons set forth below, the petition will be dismissed, and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied. An appropriate Order will be entered.
Arnold Sebastion Carver was convicted, upon his plea of nolo contendere to charges of rape, statutory rape, incest, involuntary deviate sexual intercourse, indecent assault, corruptions of the morals of a minor and criminal attempt at Nos. CC 8001817 and 8001818 in the Court of Common Pleas of Allegheny County, Pennsylvania.*fn1 On August 13, 1980, petitioner was sentenced to a ten to twenty year period of incarceration at No. CC8002017 and a consecutive twenty year period of probation at No. CC 8001818.*fn2 It is not his conviction about which Carver now complains but rather he seeks to challenge the conditions under which is probation was revoked.*fn3
Following his release from custody, the petitioner was charged with a number of probation violations and returned to custody. Essentially, the trial court concluded that following his release, the petitioner had failed to pay for sex offender treatment in violation of his probation, and additionally that he was found in possession of pornographic videotapes and had incurred a DUI arrest and conviction.*fn4
An appeal was taken to the Superior Court in which the sole issue presented was: It was a violation of the Fourteenth Amendment for the trial court to revoke Mr. Carver's probation because he could not pay for treatment.*fn5 On March 5, 2007, the probation revocation sentence was affirmed.*fn6 Reargument or reconsideration was denied on March 19, 2007*fn7 and leave to appeal was denied by the Pennsylvania Supreme Court on October 4, 2007.*fn8
The background to this conviction is set forth in the March 5, 2007 Memorandum of the Superior Court, which reiterated the trial court's summation:
On August 14, 1980, [Carver] was originally sentenced to ten (10) to twenty (20) years of incarceration after [his] conviction of various sex offenses. In addition, he was also sentenced to a consecutive sentence of twenty (20) years [of] probation. Furthermore[,] upon his release, [Carver] was required to undergo sex offender treatment at Mercy Behavioral Health ["Mercy"] during his probationary period.
He was removed from the sex offender treatment after he failed to comply.
Therefore, this Court conducted a probation violation hearing on November 2, 2005, based upon allegations that [Carver] violated the conditions of his probation by being dismissed prematurely from counseling for failing to pay for treatment.
This Court continued the hearing until December 15, 2005, with [Carver] remaining in jail. On that date, after hearing testimony, [Carver's] probation was revoked and he was resentenced to one (1) to three (3) years in a state correctional institution to be followed by seventeen (17) years of probation.*fn9 The Superior Court concluded that the essence of the appeal was the petitioner's claim that his probation was revoked and he was reincarcerated because of his inability to pay for the required treatment.*fn10 The Superior Court then summarized:
Our review of the record in this case reveals that Carver's probation was revoked, not because of an inability to pay fines as he alleges, but rather because he had violated the condition of probation that required Carver to undergo sex offender treatment at Mercy during his probationary period. The record reflects that Carver was receiving treatment and was removed from the program on at least two occasions. Initially, Carver was discharged from the program in 2004, after he had a motor vehicle accident and tested positive for alcohol... More recently, Carver was discharged from the sex offender treatment program for his refusal to make payments for his treatment and for missing classes. The record indicates that Carver owes Mercy over $800.00 for his treatments [fn. We note that the trial court stated that it found Carver's testimony relating to his inability to pay to be completely lacking in credibility]... Mercy arranged to lower Carver's fee to $70.00 per month ... When Carver still failed to pay, Mercy lowered the payments to $50.00 per month, with the first payment to be made at Carver's next appointment scheduled for September 15, 2005... However, Carver failed to attend his appointment, failed to make the payment and was discharged... Carver testified that he had missed the appointment because he overslept... Thus, the record supports the revocation court's conclusion that Carver failed to comply with the specified condition of his probation that he undergo sex offender treatment at Mercy. Accordingly, the revocation court properly revoked Carver's term of probation.*fn11
In a petition executed on September 10, 2008, Carver now comes before this Court and contends he is entitled to relief on the following grounds:
1. Trial court error/violation of the fourteenth Amendment/Due process: Trial court improperly revoked petitioner's probation for failure to pay court ordered treatments fees without findings pertaining to the willfulness of appellant's omission and erred in failing to consider alternatives to incarceration of total confinement.
2. Trial court error/due process/a violation of the Fourteenth Amendment: Probation revocation court improperly found petitioner violated the condition of probation that was never imposed and never properly ordered by the court, and abused its ...