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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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