J-S74025-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
TRACEY GLENN
Appellant No. 1647 EDA 2016
Appeal from the PCRA Order entered February 17, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0000459-2010
BEFORE: LAZARUS, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 22, 2019
Appellant, Tracey Glenn, appeals pro se from the February 17, 2016
order dismissing his petition for collateral relief filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§9541-9546.1 Following review,
we affirm.
In its Rule 1925(a) opinion, the PCRA court explained:
[Appellant] appeared before this court for his first [PCRA] petition
on November 7, 2011. Appellant had previously entered into a
negotiated guilty plea on April 30, 2010 for the charges of robbery,
possession of a firearm prohibited, firearms not to be carried
without a license, and possession of an instrument of crime.
Appellant alleged that trial counsel had incorrectly informed him
that a conviction would count as a third strike and that his
mandatory sentence as such would be 25 years to life in prison.
____________________________________________
1By order entered on May 2, 2016, Appellant’s rights to appeal the February
2016 order were reinstated nunc pro tunc.
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This court granted Appellant’s first PCRA petition and allowed him
to withdraw his 2010 guilty plea.
[Immediately following the withdrawal of Appellant’s first guilty
plea, the court addressed the issue of whether Appellant’s 199[1]
robbery charged should be considered as a first strike under 42
Pa.C.S. § 9714, which was the only prior robbery conviction still
at issue between the parties. This court found, and Appellant
eventually agreed, that the 199[1] robbery should be considered
a first strike for sentencing purposes. N.T., 11/7/2011 at 11-12.]
Appellant then entered into a second negotiated guilty plea on
November 7, 2011, where he was sentenced to a term of 7½ to
15 years[’] incarceration. He subsequently appealed his sentence
which then was affirmed by the Superior Court. Appellant files
the instant appeal containing the same issue as previously plead
and alleges he should be granted PCRA relief.
Rule 1925(a) Opinion, 12/21/16, at 1 and 3-4 (some capitalization omitted).
As noted above, this Court affirmed Appellant’s judgment of sentence
on direct appeal. At that time, we observed:
Appellant claims his guilty pleas on November 7, 2011, were
invalid because his 1991 conviction was not a first-degree felony
and did not otherwise qualify as a first strike for sentencing
purposes. As such, he suggests his current offense could not have
been a second strike.
Although Appellant was not, in fact, sentenced to a mandatory
sentence under 42 Pa.C.S.A. § 9714 for a second strike, his point
seems to be that he accepted the instant plea agreement because
he was afraid he would have otherwise been subject to a more
severe, mandatory penalty under Section 9714 due to the 1991
conviction. Because, according to Appellant, his 1991 conviction
was not a first strike, he claims his current pleas were not entered
in a knowing fashion.
...
[W]e see that Appellant agreed, during the plea hearing, with the
determination that his 1991 robbery was to be considered a felony
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of the first degree.[2] He thus waived his argument to the
contrary. He cannot now reverse his position and contend the
court relied on faulty documents and/or otherwise wrongly
determined that the 1991 robbery was a first-degree felony—i.e.,
a first strike. Thus, while we would likely allow Appellant to
challenge his pleas if he now raised some theory that was not
contrary to his record statements, we cannot allow him to make
arguments that he specifically waived during his plea hearing.
Pa.R.A.P. 302(a). If he wanted to contest the determination that
he had a prior strike, he should not have agreed that he had that
strike.
Commonwealth v. Glenn, No. 3235 EDA 2001, unpublished memorandum
at 4-6 (Pa. Super. filed July 8, 2013).
Our Supreme Court denied Appellant’s petition for allowance of appeal
on November 19, 2013. On December 16, 2013, Appellant filed a second
PCRA petition, which he subsequently amended. Counsel was appointed and
filed an amended petition on December 7, 2014. As the PCRA court explained:
____________________________________________
2 The following exchange took place during the November 7, 2001 hearing:
[PROSECUTOR]: Your Honor, I think [it’s] sufficient facts here to
find an F1 robbery coming from the bank, coming behind you,
attacking you, throwing you to the ground, kicking you.
THE COURT: For an F1 I could under the circumstances.
[PROSECUTOR]: This man was afraid enough that he had to fight
for his life.
[APPELLANT]: I am in agreement with the district attorney as far
as that case is concerned. We can continue.
Notes of Testimony, Guilty Plea Hearing, 11/7/11, at 11-12.
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On March 2, 2015, the Commonwealth filed a motion to dismiss
Appellant’s second PCRA petition. On January 11, 2016, this court
heard legal argument and decided that Appellant’s claims did not
justify an evidentiary hearing. This court also provided a 907
notice verbally. On January 14, 2016, Appellant filed a motion to
proceed pro se which he subsequently amended five days later.
On February 2, 2016, Appellant filed a pro se response requesting
that this court not dismiss his petition. On February 17, 2016,
this court dismissed Appellant’s PCRA petition, dismissed his
motion to proceed pro se as moot, and permitted [appointed
counsel] to withdraw as counsel.
On April 15, 2016, [appointed counsel] filed a motion to reconsider
which this court dismissed on May 2, 2016. However, this court
reinstated Appellant’s nunc pro tunc appellate rights. [New
counsel] was appointed as Appellant’s counsel on this date. On
May 24, 2016, [new counsel] filed a notice of appeal to the
Superior Court. On July 12, 2016, he filed a statement of matters
complained of on appeal.
Rule 1925(a) Opinion, 12/21/16, at 5 (some capitalization omitted). After
counsel filed a Rule 1925(b) statement, Appellant requested a Grazier
hearing.3 Following the hearing, the PCRA court authorized Appellant to
proceed pro se and to submit a supplemental Rule 1925(b) statement. In that
statement, Appellant raised six issues, four of which he includes in his brief
on appeal as follows:
I. Whether trial counsel [] was ineffective pursuant to Hill v.
Lockhart, 106 S.Ct. 366 (1985), for failing to investigate
the bill of information from a 1991 robbery conviction used
as evidence of a prior strike, where the bill of information
clearly indicates the robbery conviction as an ungraded
count; which invalidates the Commonwealth[’]s reliance
upon said conviction as a strike pursuant to 42 Pa.C.S.
§ 9714(g)?
____________________________________________
3 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988).
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II. Whether [Appellant’s] plea was involuntarily tendered due
to coercion in violation of McCarthy v. Unites States, 89
S.Ct. 1166 (1969), where the 14th U.S.C.A.’s due process of
law clause was not adhered to so as to allow [Appellant] to
contest the accuracy of his strike history so that he could
properly gauge the lawful length of duration he could be
subjected to based upon “submit[ted] evidence regarding
the previous conviction of the offender” pursuant to 42
Pa.C.S. § 9714(g) (emphasis added)?
III. Whether a conflict of interest existed with trial counsel []
where she was originall[y] appointed as [PCRA] counsel;
and then successfully withdrew from this current case
pursuant to Finley/Turner after arguing that [Appellant’s]
challenge to his strike history pursuant to 42 Pa.C.S. § 9714
was frivolous; but after [Appellant] prevailed upon the
challenge pro se, [that same counsel] was subsequently
appointed to represent him during the guilty plea
proceeding where the deal being offered to him was
premised solely upon his strike history not being properly
contested?
IV. Whether the trial court breached an agreement between
[Appellant], the Commonwealth, and his 1991 trial court, by
regrading a pled (sic) to ungraded robbery conviction a
Felony 1 conviction for the sole purpose of establishing
[Appellant’s] first strike as a habitual offender, when he
specifically pled to the 1991 count to reduce robbery to an
ungraded offense?
Appellant’s Brief at 4-6.
As an appeal from the denial of post-conviction relief, we apply the
following standard of review:
In PCRA appeals, our scope of review is limited to the findings of
the PCRA court and the evidence on the record of the PCRA court’s
hearing, viewed in the light most favorable to the prevailing party.
Because most PCRA appeals involve questions of fact and law, we
employ a mixed standard of review. We defer to the PCRA court’s
factual findings and credibility determinations supported by the
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record. In contrast, we review the PCRA court’s legal conclusions
de novo.
Commonwealth v. Reyes–Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)
(internal citations and quotations omitted).
In his first issue, Appellant argues his plea counsel was ineffective for
failing to investigate the bill of information from Appellant’s 1991 robbery
conviction. However, as reflected in the PCRA court’s Rule 1925(a) opinion:
When Appellant originally challenged his strike status, this court
reviewed the preliminary hearing notes, bills of information, and
presentence investigation order. A bill of information and
preliminary hearing notes may establish by a preponderance of
the evidence that a prior conviction is a crime of violence.
Commonwealth v. Guilford, 861 A.2d 365, 377 (Pa. Super.
2004). In Guilford, the defendant contended that the
Commonwealth had failed to establish by a preponderance of the
evidence that he had previously committed a crime of violence.
Id. at 376. The Superior Court concluded that the record clearly
established that the defendant had pleaded guilty to a first degree
felony robbery, a crime of violence for strike purposes in light of
the official court file containing the bill of information and the
preliminary hearing notes. Id. at 377. The preliminary hearing
notes contained an indication by the complaining witness that the
defendant walked into her store, with his hand in his pocket, and
pointed “what looked like a gun and [she] was scared and ran
away.” Id. Although the robbery was ungraded, the prosecutor
pointed to a check mark next to section 3701. Id.
As in Guilford, this court determined that Appellant’s 1991
robbery conviction was a first degree felony, making the present
conviction a second strike offense. Like the court in Guilford, this
court reviewed the preliminary hearing notes, bills of information,
and presentence investigation order:
THE COURT: You were charged after your arrest with an F1
robbery. That was the initial complaint. In the bills of
information the robbery says in accordance to committing a
theft erroneously did inflict serious[] bodily injury upon
another also did threaten another with intentionally putting
the fear or intentionally putting in fear of immediate serious
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bodily injury. So both on your complaint and the bills of
information the latter of which control the trial stage they
charged the requisite things making it an F1.
N.T. 11/7/11, at 8-9.
This court also read into the record the preliminary hearing notes
where the complaining witness stated that Appellant came at the
complaining witness from behind, threw him to the ground, and
kicked him. N.T., 11/7/11, at 12. Most compelling, Appellant
agreed that his previous[] robbery conviction was a first degree
felony.
Rule 1925(a) Opinion, 12/21/16, at 8-9 (some capitalization omitted).
In light of the trial court’s review of available materials from the 1991
conviction—including the bills of information, and especially in light of
Appellant’s own acknowledgement that the 1991 robbery conviction was a
first-degree felony, there is no basis for finding plea counsel ineffective for
failing to investigate the bills of information from that conviction. It is well-
settled that counsel cannot be considered ineffective for failing to raise and
investigate a meritless claim. See, e.g., Commonwealth v. Spotz, 18 A.3d
244, 262 (Pa. 2011). Appellant’s first issue fails.
In his second issue, Appellant contends his plea was involuntarily
tendered due to coercion. As the PCRA court recognized,
[T]his argument is premised on what Appellant believes was an
erroneous calculation of his prior strike history. As discussed in
the court’s original [Rule 1925(a)] opinion, Appellant waived this
argument by agreeing to the strike calculation at the time of his
guilty plea and, in any event, the calculation was proper.
PCRA Court Supplemental Opinion, 12/6/17, at 1. Appellant’s second issue
lacks merit.
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In his third issue, Appellant suggested there was a conflict of interest
because his original PCRA counsel later served as plea counsel at Appellant’s
November 7, 2011 hearing. Appellant candidly acknowledges his inability to
find any case law or controlling authority supporting his contention.
Appellant’s Brief at 34. Consequently, he has decided to forego the claim, id.,
obviating the need for any analysis or discussion by this Court.
In his fourth and final issue, Appellant argues that the trial court
breached an agreement between Appellant, the Commonwealth, and the 1991
trial court regarding his 1991 plea. As the PCRA court correctly observed,
This argument does not appear to have been raised in the present
PCRA petition and thus cannot be argued on appeal. In fact, it
probably should have been raised in his original appeal of the 7.5
to 15 year sentence in this case. Nevertheless, because Appellant
agreed on the record before this court that the 199[1] conviction
was for an F1 robbery, he cannot prevail on the merits of this
claim.
PCRA Court Supplemental Opinion, 12/6/17, at 1 (some capitalization
omitted).
We agree. As our Supreme Court has instructed, “Claims not raised in
the PCRA court are waived and cannot be raised for the first time on appeal[.]”
Commonwealth v. Edmiston, 851 A.2d 883, 889 (Pa. 2004) (citing
Pa.R.A.P. 302(a)) (additional citations omitted). In any event, in light of his
concession that his 1991 conviction involved an F1 robbery, Appellant cannot
prevail on the merits of this claim. Appellant’s fourth issue fails for lack of
merit.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/19
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Com. v. Glenn, T.
Combined Opinion