J-S32040-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                    Appellee                :
                                            :
              v.                            :
                                            :
TRACEY CAMILLE PINER,                       :
                                            :
                    Appellant               :            No. 86 WDA 2015

           Appeal from the PCRA Order entered on December 9, 2014
                 in the Court of Common Pleas of Blair County,
              Criminal Division, No(s): CP-07-CR-0000680-2012;
                            CP-07-CR-0002684-2011

BEFORE: SHOGAN, OLSON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                             FILED JUNE 03, 2015

        Tracey Camille Piner (“Piner”) appeals from the Order denying her

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1

We affirm.

        In its December 9, 2014 Opinion, the PCRA court summarized the

relevant factual and procedural history, which we adopt as though fully

restated herein. PCRA Court Opinion, 12/9/14, at 1-6 (unnumbered).

        After an evidentiary hearing, the PCRA court denied Piner’s Petition.

Thereafter, Piner filed the instant timely appeal, followed by a court-ordered

Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.

        Piner presents the following claims for our review:



1
    42 Pa.C.S.A. §§ 9541-9546.
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      A.      Whether the PCRA Court erred/abused its discretion by
      failing to find that [Piner’s] constitutional rights were violated
      and PCRA relief [should have been] granted due to the fact that
      [Piner] was threatened with an unconstitutional mandatory
      minimum [sentence] during the plea negotiation process?

      B.     Whether the PCRA Court erred/abused its discretion by
      failing to find that [Piner’s plea] counsel was ineffective, as the
      record demonstrates [that plea] counsel was ineffective for
      failing to properly communicate a plea offer?

      C.     Whether the PCRA Court erred/abused its discretion by
      failing to find that [Piner’s plea] counsel was ineffective, as the
      record demonstrates [that plea] counsel was ineffective for
      failing to file a pretrial motion to suppress?

      D.     Whether the PCRA Court erred/abused its discretion by
      failing to find that [Piner’s plea] counsel was ineffective, as the
      record demonstrates [that plea] counsel was ineffective for
      failing to withdraw her guilty plea?

      E.     Whether the PCRA Court erred/abused its discretion by
      failing to find that [Piner’s plea] counsel was ineffective, as the
      record demonstrates [that plea] counsel was ineffective for
      failing to file what would have been a meritorious appeal?

      F.     Whether the PCRA Court erred/abused its discretion by
      failing to find [that Piner’s] plea was unknowing and involuntary,
      as the record demonstrates [that] the plea was induced by her
      prior counsel’s ineffectiveness?

      G.     Whether the PCRA court erred/abused its discretion by
      failing to allow [Piner] to withdraw her guilty plea, as the
      evidence adduced at the PCRA hearing showed [that Piner] was
      medicated at her plea hearing to the extent [that] she did not
      fully grasp the consequences of her actions?

Brief for Appellant at 4-5.

      Piner first claims that the PCRA court improperly denied relief on her

claim of ineffective assistance of counsel, which caused her to tender an

unknowing and involuntary plea. Id. at 9. Piner asserts that, during plea


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negotiations, she was threatened with the imposition of a seven-year

mandatory minimum sentence for her drug possession charge.        Id. at 11.

Piner states that at the PCRA hearing, “she agreed that she thought she

would be subject to that mandatory sentence if she was convicted at trial.”

Id.   In addition, Piner asserts, her plea counsel testified that he had

communicated to Piner the possible seven-year mandatory minimum

sentence.   Id.   According to Piner, the threatened mandatory minimum

sentence has since been declared illegal.     Id. at 12.    Therefore, Piner

argues, the plea induced by that sentence was unknowing and involuntary,

and her counsel rendered ineffective assistance by advising her to accept the

plea agreement. Id.

      An appellate court’s standard of review regarding an order denying a

PCRA petition is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.   Commonwealth v.

Kretchmar, 971 A.2d 1249, 1251 (Pa. Super. 2009).          The PCRA court’s

findings will not be disturbed unless there is no support for the findings in

the certified record.   Commonwealth v. Treadwell, 911 A.2d 987, 989

(Pa. Super. 2006).

      To be eligible for relief based on a claim of ineffective assistance of

counsel, a PCRA petitioner must demonstrate, by a preponderance of the

evidence, that (1) the underlying claim is of arguable merit; (2) no

reasonable basis existed for counsel’s action or omission; and (3) there is a



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reasonable probability that the result of the proceeding would have been

different absent such error. Commonwealth v. Hammond, 953 A.2d 544,

556 (Pa. Super. 2008). A failure to satisfy any prong of this test requires

rejection of the claim. Id.

      In its Opinion, the PCRA court addressed Piner’s claim, and concluded

that it lacks merit:

            [] Piner has argued that her PCRA [Petition] should be
      granted and her guilty plea withdrawn due to the fact that she
      was threatened with a mandatory minimum sentence. The
      mandatory minimum sentence that would have applied has now
      been held unconstitutional by Alleyne v. United States, ___
      U.S. ___, 133 S. Ct. 2151, 186 L.Ed. 2d 314 (2013). Alleyne
      has not been held to apply retroactively to cases on collateral
      review. Commonwealth v. Miller, 2014 PA Super 214, [102
      A.3d 988, 995] (Pa. Super. 2014). Thus, [] Piner’s argument
      based on Alleyne is without merit.

PCRA Court Opinion, 12/9/14, at 6 (unnumbered). We agree with the PCRA

court’s reasoning and affirm on this basis with regard to Piner’s claim. See

id.

      In    her   second   claim,   Piner   argues   that   her   plea   counsel

miscommunicated a plea offer from the Commonwealth as a 3-10 year

prison term, when, in actuality, the offer was for a prison term of 5-10

years. Brief for Appellant at 12. Piner argues that when she found out the

actual plea offer, “she was coerced into accepting, as she was informed by

[plea counsel] that she ‘didn’t have a chance’ otherwise.” Id. at 13 (citation

omitted).




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      The PCRA court addressed this claim, and concluded that it lacks

merit. PCRA Court Opinion, 12/9/14, at 7 (unnumbered). In addition, the

PCRA court reviewed the evidence regarding the plea deal as follows:

            The letters sent to [] Piner from [her plea counsel] show
      that he was attempting to negotiate for a three[-]year minimum
      sentence. The letters also show that once Kenneth Piner began
      cooperating with the Commonwealth, the possibility of [Piner]
      getting three years was off the table. In addition, [Piner’s plea
      counsel] advised that the Commonwealth now had additional
      discovery implicating [] Piner.     [Plea counsel] advised that
      without cooperating[,] the minimum [sentence] she could get in
      a plea deal was five years. [] Piner testified that she wanted to
      accept the five to ten[-]year sentence because she wanted to
      avoid a much longer sentence of about forty-seven years.

Id. at 6 (unnumbered).        We agree with the PCRA court’s reasoning, and

its ultimate conclusion that Piner is not entitled to relief. See id. at 6, 7.

Accordingly, we affirm on the basis of the PCRA court’s Opinion with regard

to this claim. See id.

      Piner next claims that her plea counsel rendered ineffective assistance

by not filing a motion to suppress evidence derived from wiretaps. Brief for

Appellant at 14.   Piner argues that she requested that her counsel file a

suppression motion, but her counsel responded that “filing pretrial motions

would have made it more difficult to deal with the prosecution[,]” and that

the wiretap evidence benefitted her defense that “she was begging for

drugs” for personal use. Id. (citations omitted). Piner argues that had the

wiretap evidence been suppressed, there is a reasonable probability that she




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would have been acquitted at trial, or had the charges against her

dismissed. Id.

      In its Opinion, the PCRA court addressed Piner’s argument and

concluded that it lacks merit.        PCRA Court Opinion, 12/9/14, at 7-8

(unnumbered). We agree with the sound reasoning of the PCRA court, as

stated in its Opinion, and affirm on this basis with regard to Piner’s claim.

See id.

      In her fourth and fifth claims, Piner argues that her plea counsel

rendered ineffective assistance for failing to file a motion to withdraw her

guilty plea, and failing to file a direct appeal. Brief for Appellant at 15. Piner

asserts that she wrote to her plea counsel requesting that he file an appeal,

within weeks after her sentencing. Id. Piner asserts that her counsel had

good reason to know of her desire to file an appeal or withdraw her guilty

plea. Id.

      The PCRA court, in its Opinion, set forth the appropriate law,

addressed these claims, and concluded that they lack merit.          PCRA Court

Opinion, 12/9/14, at 8-10 (unnumbered) (addressing Piner’s ineffectiveness

claim regarding counsel’s failure to file a motion to withdraw the guilty plea

and appeal). The PCRA court’s findings are supported in the record, and its

legal conclusions are sound. Accordingly, we affirm on the basis of the PCRA

court’s Opinion as to these claims. See id.




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      In her sixth claim of error, Piner argues that her plea counsel’s

ineffectiveness caused Piner to tender an unknowing and involuntary plea.

Brief for Appellant at 16.    Piner asserts that “the record is replete with

examples” of her plea counsel’s errors.     Id.   However, in her brief, Piner

merely restates her prior assertions of ineffective assistance of counsel, i.e.,

that she believed that the plea offer was for 3-10 years in prison; she was

coerced into accepting the plea deal; and that counsel failed to file a

suppression motion. See id. For the reasons set forth supra, Piner’s claims

are without merit.

      In her seventh claim, Piner argues that “[d]ue to mental illness and

the effects of medication, [] Piner did not grasp the consequences of [her]

decision to plead guilty.” Id. Piner argues that her plea counsel caused her

to tender an unknowing and involuntary plea, and prevented the trial court

from inquiring into Piner’s mental state. Id. Piner states that she testified

that she suffers from bipolar disorder, anxiety and panic disorder. Id. at 18.

Piner also asserts that she was taking Sinequan and Thorazine at the time of

the plea hearing, and felt tired, sluggish and “doped up.” Id. In her brief,

Piner concedes that she did not inform the court of her mental illness or

medications.   Id.   However, Piner contends that her plea counsel told her

how to answer the written plea colloquy. Id. Piner argues that because of

her plea attorney’s counsel in this regard, the true nature of her mental

illness, and her inability to comprehend the plea proceedings, were masked.



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Id. Therefore, Piner claims, her plea cannot be considered to be knowing

and voluntary. Id.

      The PCRA court rejected Piner’s claim, concluding that

      [] Piner is bound by the testimony given at the guilty plea
      hearing under oath. The [PCRA c]ourt found her plea to be
      voluntary, knowing and intelligent. She specifically testified that
      she was not under the influence of anything that would affect
      her ability to take the plea. Several witnesses indicated that she
      did not appear to be impaired. This argument does not have
      merit.

PCRA Court Opinion, 12/9/14, at 11 (unnumbered).2           The PCRA court’s

findings are supported in the record, and its legal conclusion is sound. See

id.   Accordingly, we affirm on the basis of the PCRA court’s Opinion with

regard to this claim. See id.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/3/2015




2
  We further remind Piner that “[a] defendant is bound by the statements
[s]he makes during his plea colloquy, and may not assert grounds for
withdrawing the plea that contradict statements made when [s]he pled.”
Commonwealth v. Kelly, 5 A.3d 370, 382 (Pa. Super. 2010) (citation
omitted).

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