Opinion
J. S16041/16 No. 2278 EDA 2015
04-18-2016
COMMONWEALTH OF PENNSYLVANIA, Appellee v. MELISSA M. BUCANO, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order June 29, 2015
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000781-2010 BEFORE: OTT, J., DUBOW, J., and JENKINS, J. MEMORANDUM BY DUBOW, J.:
Appellant, Melissa M. Bucano, appeals from the order entered in the Monroe County Court of Common Pleas denying her first petition filed under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm on the basis of the PCRA court's opinion.
The relevant facts, as this Court summarized in our memorandum opinion disposing of Appellant's direct appeal, are as follows:
[T]his case involve[s] an insurance fraud scheme perpetrated by Judi Grate ("Grate"), in which [Appellant] and her mother, Bianco Bucano ("Mother"), allegedly participated. The scheme involved submission of fraudulent claims for long[-]term care insurance benefits to various insurance companies. The Commonwealth presented evidence that [Appellant], using the names of other persons, completed and signed various forms requesting reimbursement of expenses allegedly paid by Grate for long[-]term care services.
* * *
After a jury trial, [Appellant] was convicted of [insurance fraud (nine counts), criminal attempt to commit theft by deception (three counts), forgery (three counts), corrupt organizations (two counts), dealing in proceeds of unlawful activity, and criminal conspiracy.]. [Appellant] filed a Motion for extraordinary relief, which the trial court denied. On July 18, 2012, the trial court sentenced [Appellant] to an aggregate prison term of forty-five to ninety months, and a consecutive probation term of two years.Commonwealth v. Bucano , No. 2280 EDA 2012 (Pa. Super. filed June 24, 2013) (unpublished memorandum).
18 Pa.C.S. § 4117(a)(2), (3), (5); 18 Pa.C.S. § 901(a); 18 Pa.C.S. § 4101(a)(3); 18 Pa.C.S. § 911(b)(1), (3); 18 Pa.C.S. § 5111(a)(1); 18 Pa.C.S. § 903(a)(1).
Appellant filed a direct appeal. In an unpublished memorandum, this Court affirmed Appellant's judgment of sentence on June 24, 2013. Id. Our Supreme Court denied allocatur on October 31, 2013. Commonwealth v. Bucano , 79 A.3d 1096 (Pa. 2013).
On December 18, 2013, Appellant filed a timely pro se PCRA petition, which was amended after appointment of counsel, alleging, inter alia, ineffective assistance of counsel during plea negotiations due to a breakdown in the attorney-client relationship following trial counsel's request to house Appellant separately from her mother in the county jail.
The PCRA court held an evidentiary hearing on July 15, 2014, at which trial counsel and Appellant testified. Trial counsel testified that his defense strategy had been to blame the mother for exercising undue influence over Appellant, which had forced Appellant to partake in the commission of the crimes. He stated that the mother's undue influence had continued during Appellant's and her mother's incarceration in the same cell in Monroe County Jail. Counsel testified that he and Appellant's prior counsel had engaged in extensive plea negotiations on Appellant's behalf, and had advised Appellant regarding the merits of several favorable plea offers on numerous occasions, but Appellant rejected all negotiated deals.
Although Appellant entered a guilty plea in 2011, she subsequently withdrew the plea and negotiations thereafter continued. --------
In trial counsel's opinion, Appellant's mother had been pressuring Appellant to refuse all guilty pleas. Thus, believing the mother's influence was not in Appellant's best interest, trial counsel requested that the trial judge separate the two. "At trial counsel's request, the trial judge contacted the jail and asked that the two be separated." PCRA Court Opinion, dated 6/29/15, at 4. When counsel learned that in order to accommodate the request, the jail had placed Appellant in the Restricted Housing Unit ("RHU"), he requested that the trial court contact the jail to remove Appellant from RHU. Appellant then returned to the jail's general population. See N.T. PCRA, 7/15/14, at 17-25.
Appellant testified that she believed the RHU separation had interfered with the attorney-client relationship and plea negotiations because she "didn't trust anything that [trial counsel] had to say or to do with me so that relationship was already broken by finding all that out." Id. at 54.
On June 29, 2015, the PCRA court denied Appellant's Petition, concluding as follows:
Finally, after observing [Appellant] testify, reviewing the record, and reading the submitted briefs, it is clear to this Court that [Appellant]'s allegation of ineffectiveness is based on "buyer's remorse," not mistrust of counsel. As noted, over the course of this case [Appellant] was presented with three favorable plea offers, all of which would have resulted in conviction of fewer crimes and a significantly shorter sentence than she received after going to trial and being convicted of twenty crimes. Even while asserting ineffectiveness, [Appellant] acknowledges that trial counsel informed her of the risks of going to trial, including the severe sentence she faced, and that he repeatedly encouraged her to accept the final plea. This is simply not a case where a defendant was misinformed by counsel of a favorable plea offer or prejudiced by counsel's deficient performance in advising her to reject the offer and go to trial. Rather, this is a case where a defendant was properly informed about a favorable plea offer, understood both the benefits of the plea and the risks of going to trial, and chose to go to trial. To use a colloquialism, by disregarding trial counsel's plea advice, interfering with his trial strategy, and going to trial, [Appellant] "rolled the dice[."] She lost. Regret for her decision does not allege, much less prove, ineffectiveness.PCRA Court Opinion, dated 6/29/15, at 14-15 (citation omitted). Appellant filed a Notice of Appeal on July 24, 2015.
Appellant presents one issue on appeal:
Whether the [l]ower [c]ourt erred by denying Appellant's PCRA Petition despite a showing that the attorney[-]client relationship had been eroded irretrievably due to defense counsel's actions resulting in Appellant being placed into the Restrictive Housing Unit (RHU) pre-trial at the local jail, and to the extent that the plea negotiation process was interrupted to Appellant's detriment.Appellant's Brief at 4.
We review the denial of a PCRA petition to determine whether the record supports the PCRA court's findings and whether its order is otherwise free of legal error. Commonwealth v. Fears , 86 A.3d 795, 803 (Pa. 2014). This Court grants great deference to the findings of the PCRA court if they are supported by the record. Commonwealth v. Boyd , 923 A.2d 513, 515 (Pa. Super. 2007). We give no such deference, however, to the court's legal conclusions. Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa. Super. 2012).
To be eligible for relief pursuant to the PCRA, Appellant must establish, inter alia, that her conviction or sentence resulted from one or more of the enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2). Appellant must also establish that the issues raised in the PCRA Petition have not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3). An allegation of error "is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state postconviction proceeding." 42 Pa.C.S. § 9544(b).
Appellant's sole issue on appeal is that trial counsel was ineffective during plea negotiations. The law presumes counsel has rendered effective assistance. Commonwealth v. Rivera , 10 A.3d 1276, 1279 (Pa. Super. 2010). The burden of demonstrating ineffectiveness rests on Appellant. Id. To satisfy this burden, Appellant must plead and prove by a preponderance of the evidence that: (1) her underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate her interests; and (3) but for counsel's ineffectiveness, there is a reasonable probability that the outcome of the challenged proceedings would have been different. Commonwealth v. Fulton , 830 A.2d 567, 572 (Pa. 2003).
The Honorable Jonathan Mark, sitting as the PCRA court, has authored a comprehensive, thorough, and well-reasoned opinion, citing to the record and relevant case law in addressing Appellant's sole claim on appeal. After a careful review of the parties' arguments and the record, we affirm on the basis of the PCRA court's opinion. See PCRA Court Opinion, dated 6/29/15, at 7-15.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/18/2016
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