Com. v. McClenton, M.

J-S61040-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 901(a), 903(a)(1), 3503(a)(1)(i).
J-S61040-17
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(unpublished memorandum)).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.
-2-
J-S61040-17
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
____________________________________________
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).
-3-
J-S61040-17
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
-4-
J-S61040-17
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. . . .
-5-
J-S61040-17
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
-6-
J-S61040-17
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
____________________________________________
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).
-7-
J-S61040-17
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.”).
-8-
J-S61040-17
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
-9-