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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. J-S32040-15
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
-3- J-S32040-15
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).
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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. J-S32040-15
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
-2- J-S32040-15
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
-3- J-S32040-15
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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