Opinion
J. S16042/16 No. 2292 EDA 2015
04-11-2016
COMMONWEALTH OF PENNSYLVANIA, Appellee v. BIANCA AURA 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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-0000778-2010 BEFORE: OTT, J., DUBOW, J., and JENKINS, J. MEMORANDUM BY DUBOW, J.:
Appellant, Bianca Aura Bucano, appeals from the order entered in the Monroe County Court of Common Pleas denying her sixth 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.
Although Appellant has filed six total PCRA petitions, as well as two writs of habeas corpus seeking collateral relief, she filed the instant petition on September 26, 2014.
The facts, as summarized in this Court's memorandum opinion disposing of Appellant's direct appeal, are as follows:
The instant charges arose out of the Thirtieth Statewide Investigating Grand Jury. Following the court's acceptance of Presentment Number 18 on March 15, 2010, the Pennsylvania Attorney General filed a criminal complaint on March 29, 2010, charging Appellant1 with a multitude of crimes related to an insurance fraud scheme allegedly masterminded by Judi Grate,
in which Appellant and her daughter, Melissa M. Bucano, participated. The scheme involved submission of fraudulent claims for long-term care insurance benefits to various insurance companies.
1 Appellant and eight co-defendants were charged: Judi Grate, Melissa Bucano, who is Appellant's daughter, Christopher Bucano, who is Appellant's son, Barbara Rollins, Uhura Byrd, Patricia Lesane, Priscilla Grate Flowers, and Grace John.
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Appellant entered a guilty plea dated September 8, 2011, and filed September 13, 2011, which she subsequently withdrew on December 13, 2011. A jury trial for Appellant and her daughter, Melissa,2 began on April 16, 2012, and concluded on April 25, 2012, with convictions [on two counts of corrupt organizations, one count of dealing in proceeds of unlawful activity, ten counts of insurance fraud graded as a felony, one count of insurance fraud graded as a misdemeanor, two counts of theft by deception, three counts of attempt to commit theft by deception, two counts of forgery, and one count of conspiracy].
2 A panel of this Court affirmed the judgment of sentence of Melissa Bucano, Commonwealth v. Bucano , 82 A.3d 468 (Pa. Super. filed June 24, 2013) (unpublished memorandum), and our Supreme Court denied her petition for allowance of appeal. Commonwealth v. Bucano , 79 A.3d 1096 (Pa. 2013).
The trial court sentenced Appellant on August 2, 2012, docketed August 3, 2012, to an aggregate period of incarceration of 141 months to 282 months and imposed restitution in the amount of $1,146,181.28. Appellant filed post-sentence motions on August 13, 2012, followed by pro se motions for PCRA relief on August 20, 28, and 30, 2012. The trial court dismissed the June 26, 2012 PCRA petition on August 31, 2012, and defense counsel sought to withdraw on September 6, 2012. At an October 17, 2012 hearing on post-sentence motions, defense counsel withdrew his withdrawal request. The trial court denied post-sentence motions on January 7, 2013, and granted an
unopposed motion to reinstate Appellant's direct appeal rights nunc pro tunc on February 19, 2013.Commonwealth v. Bucano , No. 599 EDA 2013 (Pa. Super. filed May 20, 2014) (unpublished memorandum) (some citations and footnotes omitted).
Appellant filed a direct appeal. We affirmed Appellant's judgment of sentence on May 20, 2014. Id. Appellant did not file a Petition for Allowance of Appeal.
On September 26, 2014, Appellant filed the instant timely pro se PCRA petition, which was amended after appointment of counsel, alleging numerous claims of ineffective assistance of trial and appellate counsel. The PCRA court held an evidentiary hearing on February 23, 2015, at which Appellant, Appellant's two trial attorneys, and Appellant's appellate counsel testified.
On June 29, 2015, the PCRA court denied Appellant's Petition. She filed a timely Notice of Appeal on July 21, 2015.
Appellant presents the following 13 issues on appeal:
1. Whether it was an error of law or an abuse of discretion when the trial court found there was no ineffective assistance of counsel for failing to adequately advise [Appellant] of potential ramifications of withdrawal of guilty plea vs. plea offers vs. trial?
2. Whether it was an error of law or an abuse of discretion when the trial court found there was no ineffective assistance of counsel for failing to advise/explain to [Appellant] regarding plea offers?
3. Whether it was an error of law or an abuse of discretion when the trial court found there was no ineffective assistance of counsel for failing to appeal the issue of recusal of judge?
4. Whether it was an error of law or an abuse of discretion when the trial court found there was no ineffective assistance of counsel for failing to appeal the sentence as it was not proper?Appellant's Brief at 4-6 (suggested answers and capitalization omitted).
5. Whether it was an error of law or an abuse of discretion when the trial court found there was no ineffective assistance of counsel for failing to review PSI with [Appellant] prior to sentencing?
6. Whether it was an error of law or an abuse of discretion when the trial court found there was no ineffective assistance of counsel for failing to call necessary witnesses?
7. Whether it was an error of law or an abuse of discretion when the trial court found there was no ineffective assistance of counsel for failing to adequately prepare for trial?
8. Whether it was an error of law or an abuse of discretion when the trial court found there was no ineffective assistance of counsel for failing to adequately cross-examine witnesses?
9. Whether it was an error of law or an abuse of discretion when the trial court found there was no ineffective assistance of counsel for failing to adequately prepare client for trial?
10. Whether it was an error of law or an abuse of discretion when the trial court found there was no ineffective assistance of counsel for failing to appeal the issue of severance?
11. Whether it was an error of law or an abuse of discretion when the trial court found there was no ineffective assistance of counsel for failing to adequately cite to documents and testimony?
12. Whether it was an error of law or an abuse of discretion when the trial court found there was no ineffective assistance of counsel for failing to adequately assure certified record was complete?
13. Whether it was an error of law or an abuse of discretion when the trial court found there was no ineffective assistance of counsel for failing to adequately communicate with [Appellant] or ensure factual correctness of the brief?
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).
All of Appellant's issues on appeal are claims of ineffective assistance of trial and appellate counsel. 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 claims 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 10/5/15, at 13-36 (concluding that each of Appellant's ineffectiveness claims failed).
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/11/2016
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