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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GLENN HICKS,
Appellant No. 1827 WDA 2013
Appeal from the PCRA Order Entered November 6, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0006075-2009
BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 03, 2015
Appellant, Glenn Franklin Hicks, appeals pro se from the November 6,
2013 order dismissing his petition for relief filed under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
The PCRA court set forth the following factual and procedural history of
Appellant’s case:
[Appellant] was charged with Involuntary Deviate Sexual
Intercourse [(IDSI)] with a Child, Aggravated Indecent Assault
of a Child, Endangering the Welfare of a Child, Indecent Assault
of a Person under 13 Years of Age, Indecent Exposure and
Corruption of Minors in relation to a series of incidents that
occurred with his girlfriend’s granddaughter, then age 9. On
[April 28,] 2011, [Appellant] appeared before this Court and,
pursuant to a plea agreement with the Commonwealth, pled
guilty to one (1) count of IDSI with a Child, Aggravated Indecent
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*
Retired Senior Judge assigned to the Superior Court.
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Assault, Endangering the Welfare of a Child and Corruption of
Minors.[1] Pursuant to the agreement the remaining charges
were withdrawn and an agreement for sentence was reached, to
be imposed following a Sexually Violent Predator [(SVP)]
evaluation.
On April 11, 2011, the Sexual Offenders Assessment Board
returned its evaluation in which it indicated that [Appellant] met
the criteria of a[n] [SVP]. The Commonwealth then petitioned
for a[n] [SVP] Hearing which was held before this Court on June
30, 2011 and continued on July 7, 2011. At the conclusion of
that hearing, this Court made findings of fact on the record,
determined that [Appellant] was a[n] SVP and entered an Order
to that effect. This Court then sentenced [Appellant] to a term
of imprisonment of five (5) to twenty (20) years, pursuant to his
plea agreement. The judgment of sentence was affirmed by the
Superior Court on September 7, 2012. [Commonwealth v.
Hicks, 60 A.3d 846 (Pa. Super. 2012) (unpublished
memorandum).] No Petition for Allowance of Appeal was filed.
No further action was taken until July 23, 2013, when
[Appellant] filed a pro se [PCRA] Petition. Scott Coffey,
Esquire[,] was appointed to represent [Appellant], but he later
filed a Turner[/Finley][2] “no merit” letter and sought
permission to withdraw. After reviewing the record in its
entirety[,] this Court permitted Mr. Coffey to withdraw and gave
notice of its intent to dismiss the Petition. [Appellant filed a pro
se response, arguing that Attorney Coffey acted ineffectively in
several regards]. On November 4, 2013, the Petition was
dismissed without a hearing.
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1
On January 24, 2011, Appellant entered a plea of nolo contendere that was
accepted by the court. After entering that plea, however, Appellant sent the
trial court a letter that left “some question in [the judge’s] mind as to
whether or not [Appellant] was admitting or denying the charge[s].” N.T.,
4/28/11, at 2. Accordingly, the court permitted Appellant to withdraw his
nolo contendere plea. Id. Appellant then appeared before the court for a
second time on April 28, 2011, and entered a guilty plea.
2
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988).
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PCRA Court Opinion (PCO), 4/4/14, at 1-2.3
Appellant filed a timely notice of appeal, as well as a timely Rule
1925(b) statement.4 On appeal, he presents four issues for our review:
1) [Appellant’s] plea was unknowingly, unintelligently, and
involuntarily entered.
2) Plea counsel was ineffective for failing to object to the
unknowingly, unintelligently and involuntary plea.
3) Direct appeal counsel, and PCRA counsel were ineffective for
failing to raise the issue, that [Appellant’s] plea was
unknowingly, unintelligently and involuntarily entered.
4) [The] PCRA court did abuse it’s [sic] dicretion [sic] and/or
commit an error of “law” in denying [Appellant’s] request for
PCRA[] relief where the [record] clearly demonstrates
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3
As the PCRA court notes in its April 4, 2014 opinion, it initially filed an
opinion on January 13, 2014,
indicating that [Appellant] had failed to file a [Pa.R.A.P. 1925(b)]
Concise Statement of [Errors] Complained of on Appeal.
Thereafter, [Appellant’s] Concise Statement was found in the
Clerk of Courts Office, never having been forwarded to [the
PCRA] Court. Since [Appellant] had properly filed his Concise
Statement in compliance with [the] Court’s Order of November
18, 2013, [the PCRA] Court [] prepared [an] Amended Opinion[,
issued on April 4, 2014,] to address his claims.
PCO at 2 n.7.
4
The PCRA court ordered that Appellant’s Rule 1925(b) statement be filed
by December 9, 2013. Appellant’s pro se statement, which was hand-dated
December 2, 2013, was not docketed until January 3, 2014. Nevertheless,
we will consider Appellant’s Rule 1925(b) statement as being timely filed
because the PCRA court indicates (as set forth in footnote 2, herein) that the
Clerk of Courts may have misplaced that document prior to docketing it.
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[Appellant’s] plea was[] unknowingly, unintelligently and
involuntarily entered; thus all counsel were ineffective.
Appellant’s Brief at 4 (unnumbered; unnecessary capitalization omitted).
Before addressing Appellant’s issues, we note that “[o]ur standard for
reviewing PCRA orders is to determine whether the court’s rulings are
supported by the record and free of legal error.” Commonwealth v.
Miner, 44 A.3d 684, 688 (Pa. Super. 2012) (citation omitted). “It is an
appellant’s burden to persuade us that the PCRA court erred and that relief
is due.” Id. (citation omitted).
Appellant has failed to meet this burden in the present case. In
Appellant’s pro se, hand-written brief, he sets forth a 24-page argument
section that is not divided into any distinct issues as mandated by our Rules
of Appellate Procedure. See Pa.R.A.P. 2119(a) (“The argument shall be
divided into as many parts as there are questions to be argued; and shall
have at the head of each part -- in distinctive type or in type distinctively
displayed -- the particular point treated therein, followed by such discussion
and citation of authorities as are deemed pertinent.”). Moreover, the
substance of Appellant’s argument is extremely confusing. From what we
can ascertain, he is primarily averring that he is innocent, yet he entered a
guilty plea because of the inadequate representation of his plea counsel.
Specifically, Appellant avers that plea counsel told him that if he accepted
the “plea deal of 5 to 20 years,” he would “do two and one half years, then
[he would] be home.” Appellant’s Brief at 3 (internal quotation marks
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omitted). Appellant also claims that plea counsel (1) never met with him;
(2) did not explain to Appellant the written plea colloquy that he signed; (3)
conspired with the Commonwealth and abandoned him; and (4) was
unprepared to represent him. Finally, Appellant briefly contends that his
direct appeal and PCRA attorneys were ineffective for not challenging the
validity of his plea on direct appeal and/or in an amended PCRA petition.
As this Court has repeatedly stated,
[t]o plead and prove ineffective assistance of counsel a
petitioner must establish: (1) that the underlying issue has
arguable merit; (2) counsel's actions lacked an objective
reasonable basis; and (3) actual prejudice resulted from
counsel's act or failure to act. Commonwealth v. Chmiel, 612
Pa. 333, 30 A.3d 1111, 1127 (2011).
Commonwealth v. Rykard, 55 A.3d 1177, 1189-1190 (Pa. Super. 2012).
Here, Appellant makes no attempt to argue how his claims of plea,
appellate, and PCRA counsels’ ineffectiveness meet the above-stated prongs.
Instead, he simply reiterates throughout his brief that he is innocent, and
that his plea counsel essentially compelled him to enter an involuntary,
unknowing, and/or unintelligent guilty plea. However, the record of
Appellant’s plea proceeding belies this claim. As the PCRA court
emphasizes, Appellant
completed a [written] plea colloquy where he indicated that he
understood his right to a trial, that he did not suffer from any
mental illness that would affect his ability to understand his
rights or the voluntary nature of his plea, and that he had gone
over the terms of the plea with his attorney and was satisfied
with her services.
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PCO at 3. Additionally, in the written plea colloquy, Appellant indicated that
no one, including his attorney, promised him anything in exchange for
entering his plea. See Written Colloquy, 4/28/11, at 8.
Then, at the plea proceeding, the court explained the charges to which
Appellant was pleading guilty, the elements of those offenses, and the
maximum sentence Appellant faced for each crime. N.T. at 4-5. Appellant
stated that he understood the charges against him. The Commonwealth
then summarized the facts of the case. Id. at 5-6. At the close of that
recitation, the court asked Appellant if he was “pleading guilty because [he
is] guilty[,]” to which Appellant replied, “Yes, Your Honor.” Id. at 7.
Appellant then stated that he read and understood the written plea colloquy.
Id. at 7. Finally, and most notably, the court asked Appellant if he was
“satisfied with the services of [his] attorney[,]” and Appellant replied,
“[y]es.” Id.
Nothing in the record of the April 28, 2011 colloquy suggests that
Appellant’s plea was unknowing, unintelligent, or involuntary. Moreover, at
no point during that proceeding (or in his written colloquy) did Appellant
raise the complaints about his plea counsel’s representation that he proffers
herein, or indicate that his counsel convinced him to plead guilty by
promising that he would serve a reduced sentence. We also emphasize that
the April 28, 2011 guilty plea was the second time Appellant entered a plea
agreement to charges in this case. He was initially permitted to withdraw
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his January 24, 2011 plea of nolo contendere, yet chose to again stand
before the court and admit his guilt on April 28, 2011. His belated assertion
of innocence on appeal to this Court does not convince us that his plea was
unknowing, unintelligent, or involuntary, or that his plea counsel acted
ineffectively. Additionally, Appellant’s direct appeal and PCRA counsels
cannot be deemed ineffective for failing to raise a meritless challenge to the
validity of his plea, and/or a challenge to the adequacy of plea counsel’s
representation. See Commonwealth v. Pursell, 724 A.2d 293, 304 (Pa.
1999) (“[I]t is axiomatic that counsel will not be considered ineffective for
failing to pursue meritless claims.”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/3/2015
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