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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

    MICHAEL MCCLENTON,

                             Appellant                  No. 2530 EDA 2016


                   Appeal from the PCRA Order June 27, 2016
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0005997-2009


BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED DECEMBER 05, 2017

        Appellant, Michael McClenton, appeals from the order denying in part

his first petition pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. Specifically, he claims the court erred when it denied

his ineffective assistance of counsel claim, and that it imposed an illegal

sentence. We affirm.

        We take the factual and procedural history of this case from our review

of the certified record and the PCRA court’s December 15, 2016 opinion. On

June 7, 2011, a jury found Appellant guilty of attempted burglary, conspiracy

and criminal trespass.1 Sentencing was continued until August 12, 2011, at


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*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 901(a), 903(a)(1), 3503(a)(1)(i).
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the request of the Commonwealth, to determine whether Appellant’s burglary

conviction constituted a “third strike” under the sentencing guidelines. (See

N.T. Sentencing, 8/12/11, at 4). The trial court determined that the conviction

constituted a “second strike” and sentenced him accordingly to not less than

ten nor more than twenty years of imprisonment for attempted burglary, a

consecutive sentence of not less than five nor more than ten years for criminal

conspiracy, and imposed no further penalty on the charge of criminal trespass

because it found that charge merged with the attempted burglary conviction.

(See id. at 47-48); see also 42 Pa.C.S.A. § 9714(a)(1). On September 19,

2012, this Court affirmed the judgment of sentence. (See Commonwealth

v. McClenton, No. 2392 EDA 2011 (Pa. Super. filed Sept. 19, 2012)

(unpublished memorandum)). On June 19, 2013, our Supreme Court denied

allowance of appeal. (See Commonweath v. McClenton, 69 A.3d 243 (Pa.

2013)).

      On September 10, 2014, Appellant filed a timely counseled first PCRA

petition, arguing that his sentence was illegal because he was sentenced to

two inchoate crimes for conduct designed to commit the same crime, and also

alleging two claims of ineffective assistance of trial counsel. On September

14, 2015, the Commonwealth filed a motion to dismiss. The Commonwealth

concluded that Appellant was sentenced in error for both inchoate crimes.

However, it rejected all of Appellant’s other claims and urged the court to

dismiss the petition without a hearing.




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       On October 30, 2015, the PCRA court issued notice of its intent to

dismiss Appellant’s petition because, with the exception of the illegal sentence

claim, the issues raised were without merit.         See Pa.R.Crim.P. 907(1).

Appellant filed a response to the court’s notice on November 19, 2015.

       On March 4, 2016, the court conducted a resentencing hearing. During

this hearing, at Appellant’s request, the PCRA court permitted him to testify

regarding his ineffective assistance of counsel claim. (See N.T. Sentencing,

3/04/16, at 7-22). At the conclusion of the hearing, the court vacated its

sentence of not less than five nor more than ten years of imprisonment on the

charge of criminal conspiracy, and denied Appellant’s ineffective assistance of

counsel claims. (See id. at 25).2

       On July 21, 2016, Appellant filed a timely notice of appeal. The court

did not direct Appellant to file a concise statement of errors complained of on

appeal. It entered an opinion on December 15, 2016, in which it explained

that it found Appellant not credible, and so denied his claims of ineffective

assistance of counsel. See Pa.R.A.P. 1925.

       Appellant raises two issues on appeal:

       I.     Whether the PCRA court erred when it failed to hold an
              evidentiary hearing on the claim of ineffective assistance of

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2The court initially held the resentencing hearing on March 4, 2016; however,
because of unspecified technical reasons, the results were not properly
entered, so it conducted a second hearing on June 27, 2016. (See N.T.
Sentencing, 6/27/16, at 3). The PCRA court’s decision was the same in both
hearings. (Compare id. at 4; N.T. Sentencing, 3/04/16, at 25).


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            trial counsel for failure to give reasonable professional
            advice in connection with a very generous plea offer?

      II.   Whether the sentence of [not less than ten nor more than
            twenty] years [of imprisonment] imposed pursuant to 18
            [Pa.C.S.A. §] 901 and 42 [Pa.C.S.A. §] 9714 is a sentence
            that is illegal and unconstitutional because it was imposed
            for an aggravated crime without adequate pre-trial notice
            set forth in the information?

(Appellant’s Brief, at 2) (unnecessary capitalization omitted).

      In his first issue, Appellant contends that the PCRA court erred when it

denied, without a hearing, the ineffective assistance of counsel claims in his

PCRA petition. (See id. at 12-22). Appellant argues that he is entitled to

relief because counsel failed to give accurate advice with respect to a plea

offer, which he claims he would have accepted if he “had been aware of the

hazards of rejecting it.” (Id. at 16). We disagree.

      Our standard of review of a court’s denial of a PCRA petition is well-

settled.

      In reviewing the denial of PCRA relief, we examine whether the
      PCRA court’s determination is supported by the record and free of
      legal error. The scope of review is limited to the findings of the
      PCRA court and the evidence of record, viewed in the light most
      favorable to the prevailing party at the trial level. It is well-settled
      that a PCRA court’s credibility determinations are binding upon an
      appellate court so long as they are supported by the record.
      However, this Court reviews the PCRA court’s legal conclusions de
      novo.

             We also note that a PCRA petitioner is not automatically
      entitled to an evidentiary hearing. We review the PCRA court’s
      decision dismissing a petition without a hearing for an abuse of
      discretion.

                  [T]he right to an evidentiary hearing on a post-
            conviction petition is not absolute. It is within the

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           PCRA court’s discretion to decline to hold a hearing if
           the petitioner’s claim is patently frivolous and has no
           support either in the record or other evidence. It is
           the responsibility of the reviewing court on appeal to
           examine each issue raised in the PCRA petition in light
           of the record certified before it in order to determine
           if the PCRA court erred in its determination that there
           were no genuine issues of material fact in controversy
           and in denying relief without conducting an
           evidentiary hearing.

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations

and quotation marks omitted).

            . . . [A] post-conviction petitioner seeking relief on the basis
     that ineffective assistance of counsel caused him or her to reject
     a guilty plea must demonstrate the following circumstance:

                 [B]ut for the ineffective advice of counsel there
           is a reasonable probability that the plea offer would
           have been presented to the court (i.e., that the
           defendant would have accepted the plea and the
           prosecution would not have withdrawn it in light of
           intervening circumstances), that the court would have
           accepted its terms, and that the conviction or
           sentence, or both, under the offer’s terms would have
           been less severe than under the judgment and
           sentence that in fact were imposed.

Commonwealth v. Steckley, 128 A.3d 826, 832 (Pa. Super. 2015), appeal

denied, 140 A.3d 13 (Pa. 2016) (quoting Lafler v. Cooper, 132 S.Ct. 1376,

1385 (2012)).

            . . . [N]othing prevents a PCRA petitioner from meeting his
     burden under Lafler with “his own self-serving statement” that
     he would have entered a guilty plea but for counsel’s
     ineffectiveness.     As long as the PCRA court finds the
     petitioner’s testimony to be credible, there is no coherent
     justification for characterizing such evidence as inherently
     deficient as a matter of law. . . .




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Steckly, supra at 832 (emphasis added).           “The PCRA court’s credibility

determinations, when supported by the record, are binding on this Court.”

Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citation omitted).

      Here, having reviewed the PCRA petition, and having heard Appellant’s

testimony and determined it lacked credibility, the PCRA court concluded that

Appellant did not “provide sufficient evidence that trial counsel failed to inform

[him] that he was subject to a mandatory minimum under a ‘second strike.’”

(PCRA Ct. Op., at 6; see id. at 6-7). The court explained that “[Appellant’s]

own statements do not meet the burden of proof required to overcome the

assumption that counsel was effective and demonstrate that his claims have

arguable merit.”      (Id. at 7).      Because the PCRA court’s credibility

determinations are supported by the record, they are binding on this Court.

See Spotz, supra at 259. Based on the foregoing, we agree with the court’s

conclusion that Appellant has not demonstrated that counsel rendered

ineffective assistance with respect to the guilty plea. See Steckley, supra

at 832; Miller, supra at 992.

      Furthermore, it is apparent from the record that, although the PCRA

court did not hold an evidentiary hearing, it permitted Appellant to testify on

March   4,   2016,   and   carefully   and   thoroughly   examined    Appellant’s

ineffectiveness claims and concluded that they lacked merit. (See PCRA Ct.

Op., at 5-7). After reviewing Appellant’s claims in light of the certified record,

we discern no abuse of discretion in the PCRA court’s decision to decline to




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hold a hearing. See Miller, supra at 992. Appellant’s first issue does not

merit relief.

       In his second issue, Appellant alleges that his sentence is illegal because

section 9714 is unconstitutional. (See Appellant’s Brief, at 23-26). He argues

that because he did not receive notice of its applicability in the criminal

information “it seems reasonable to assume that 42 [Pa.C.S.A. §] 9714 is

unconstitutional[.]” (Id. at 25). He also appears to claim that the statute

was rendered unconstitutional following the Supreme Court’s decision in

Alleyne v. United States, 133 S.Ct. 2151 (2013). (See id. at 23-26 (citing

Commonwealth v. Bragg, 133 A.3d 328, 333 (Pa. Super. 2016), appeal

granted in part, 143 A.3d 890 (Pa. 2016), and aff'd, per curiam,

Commonwealth v. Bragg, 2017 WL 3596177 (Pa. filed Aug. 22, 2017)).3

We disagree.

       In Bragg, a panel of this Court concluded that under an exception to

Alleyne for prior convictions, an appellant could receive a mandatory

minimum sentence pursuant to 42 Pa.C.S.A. § 9714(a)(1) for an offense

constituting a crime of violence without a jury finding the fact of the prior

conviction. See Bragg, supra at 333. On August 22, 2017, our Supreme

Court affirmed this Court’s holding. Thus, Appellant’s argument, premised on

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3At the time of briefing, our Supreme Court had granted allowance of appeal,
but had not issued its ruling in Bragg. Appellant’s reply brief, which was filed
after our Supreme Court affirmed Bragg, fails to acknowledge that the Court
affirmed this Court’s holding. (See Appellant’s Reply Brief, at 4).


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the assumption that our Supreme Court would overturn Bragg, does not merit

relief.

          Additionally, to the extent that Appellant argues that his sentence is

illegal because the information did not give him notice of the applicability of

section 9714, his argument is waived and would lack merit.

          Preliminarily, we observe that Appellant failed to provide legal citation

and discussion thereof, in support of his claim, in violation of Pennsylvania

Rules of Appellate Procedure 2119(a) and (b). (See Appellant’s Brief, at 25-

26); Pa.R.A.P. 2119(a)-(b) (requiring Appellant to provide pertinent citation

to legal authority and discussion thereof). Therefore, Appellant’s argument

concerning the unconstitutionality of section 9714, based on a lack of notice

is waived. See Rettger v. UPMC Shadyside, 991 A.2d 915, 932 (Pa. Super.

2010), appeal denied, 15 A.3d 491 (Pa. 2011) (finding issue waived where

appellant failed to cite any law in support of issue); Pa.R.A.P. 2101.

          Moreover, even if Appellant had properly argued this issue it would not

merit relief. Pursuant to the language of the statute, the Commonwealth is

not required to give notice of its applicability prior to conviction, but should

give reasonable notice before sentencing.          See 42 Pa.C.S.A. § 9714(d)

(“Provisions of this section shall not be an element of the crime and notice

thereof to the defendant shall not be required prior to conviction, but

reasonable notice of the Commonwealth’s intention to proceed under this

section shall be provided after conviction and before sentencing.”).




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          Here, sentencing, which had been scheduled on July 26, 2011, was

continued until August 12, 2011, at the request of the Commonwealth, for it

to determine whether this conviction qualified as a third or second strike under

42 Pa.C.S.A. § 9714. (See N.T. Sentencing, 8/12/11, at 4). Thus, Appellant

had notice that, at a minimum, this conviction would constitute a second

strike.      Because the Commonwealth’s notice complied with the statute,

Appellant has not shown that his sentence pursuant to section 9714 is illegal.

Therefore, even if it were not waived Appellant’s second issue would not merit

relief.

          Accordingly, we conclude that Appellant has not met his burden of

proving that he is entitled to relief.     The PCRA court’s determination is

supported by the record and free of legal error.     Therefore, we affirm the

decision of the PCRA court.

          Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/5/2017




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