Opinion
J-S52036-15 No. 286 WDA 2015
11-04-2015
COMMONWEALTH OF PENNSYLVANIA Appellee v. ANTHONY JOSEPH RACO Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order of January 28, 2015
In the Court of Common Pleas of Somerset County
Criminal Division at No.: CP-56-CR-0000209-2011
BEFORE: SHOGAN, J., OLSON, J., and WECHT, J. MEMORANDUM BY WECHT, J.:
Anthony Raco appeals the January 28, 2015 order dismissing his petition for relief pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-46. The PCRA court has comprehensively and correctly ruled upon Raco's claims in its opinion in support of its order dismissing Raco's PCRA petition and its opinion pursuant to Pa.R.A.P. 1925(a). We adopt the PCRA court's opinions as our own, and we affirm the order.
In this case, Raco was charged with involuntary deviate sexual intercourse by forcible compulsion, sexual assault, unlawful restraint, and indecent assault by forcible compulsion. Raco initially hired Arthur T. McQuillan, Esq. to represent him at trial. However, Raco eventually disengaged Attorney McQuillan, and hired Sally Frick, Esq., and George Bills, Esq., to represent him. With Attorneys Frick and Bills, Raco waived his right to a jury trial, and instead elected to proceed with a bench trial.
At the conclusion of the non-jury trial, the trial court convicted Raco of sexual assault, and acquitted him of the remaining charges. On April 30, 2014, the trial court sentenced Raco to twenty-four to forty-eight months' incarceration. Pursuant to the Sex Offender Registration and Notification Act ("SORNA"), 42 Pa.C.S. §§ 9799.10 et seq., Raco, having been convicted of sexual assault, was designated to comply with the requirements of SORNA for his lifetime. Raco filed a post-sentence motion, in which he alleged that SORNA was unconstitutional. The trial court denied the motion.
The facts presented at the non-jury trial in support of the conviction are immaterial to our disposition of this appeal. Thus, we will not recite them here.
Raco did not file an appeal. Instead, he proceeded directly to the collateral stage of his case by filing a PCRA petition on October 23, 2014. Raco alleged that prior counsel were ineffective for failing to communicate to him on the day of trial that the assistant district attorney had made a standing offer that would permit Raco to plead guilty to indecent assault, which would have resulted in a lesser sentence and a shorter reporting period under SORNA. Raco alleged that trial counsel never communicated the standing offer to him, and that he would have accepted it had they done so.
The PCRA court held multiple hearings on the petition. The court has summarized trial counsel's testimony as follows:
Both Attorney Frick and Attorney Bills testified at the PCRA hearing. The PCRA court does not distinguish between the two in summarizing their testimony. However, this minor lack of clarity does not disrupt our analysis or disposition of this case.
At the evidentiary hearing [at which counsel testified], trial counsel acknowledged that while the assistant district attorney extended a plea offer immediately before trial, the offer was not communicated or discussed with [Raco], and trial counsel rejected the offer. However, trial counsel testified that throughout their representation of [Raco], they had discussed many possible resolutions with [Raco]. These resolutions included discussions related to the possibility of Accelerated Rehabilitative Disposition, which was objected to by the victim, and a plea offer of sexual assault, which was discussed with and ultimately rejected by [Raco]. Trial counsel testified that, at some point while representing [Raco], there were discussions relating to a plea offer of indecent assault. However, this plea offer carried with it mandatory reporting requirements, "which was the problem." More specifically, trial counsel noted that, based on discussion with [Raco], it appeared that [Raco] wanted to avoid two things: SORNA reporting requirements and incarceration. After trial counsels' "extensive discussions" with [Raco] about the possibility of pleading guilty to indecent assault and the potential ramifications of such a guilty plea, [Raco] rejected the plea offer due to the fact that indecent assault carried mandatory reporting requirements under SORNA.
Despite [Raco's] prior rejection of the plea offer, the assistant district attorney advised trial counsel, immediately before trial, that a plea offer of indecent assault remained on the table. Without communicating to [Raco] that the plea offer was still available, trial counsel rejected the offer because "we were ready to go to trial. As far as [trial counsel] was concerned, that
issue had been decided." Trial counsel testified that they "had talked about so many offers at so many times - yeah, we were just ready to go [to trial], and that's what [trial counsel] thought everybody wanted to do." Moreover, on the day of trial, trial counsel believed the issue of a plea deal was "a moot point" because [Raco] had previously rejected the offer of indecent assault with the attached mandatory reporting requirements.PCRA Court Opinion ("P.C.O."), 1/29/2015, at 2-3 (capitalization modified for clarity; references to notes of testimony omitted).
The PCRA court specifically credited trial counsel's testimony. Id. at 6. Relying upon that testimony, the court dismissed Raco's PCRA petition. On February 17, 2015, Raco filed a notice of appeal. In response, the PCRA court directed Raco to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On March 6, 2015, Raco timely complied. On March 25, 2015, the PCRA court issued an opinion pursuant to Pa.R.A.P. 1925(a), in which the court adopted the rationale that it set forth in its January 29, 2015 opinion in support of dismissing Raco's PCRA petition as dispositive of all but one of Raco's issues. The PCRA court then addressed the final issue raised by Raco that had not been addressed in its original opinion.
Raco raises five issues for our review:
A. Whether, under both Pennsylvania and federal law, former trial counsel were constitutionally ineffective, thus, requiring vacation of conviction and grant of new trial, where at no relevant time did former trial counsel advise [Raco] of the details, or even the existence, of a formal plea offer that was communicated by the Commonwealth to former trial counsel and held open until the day of trial?
B. Whether, under both Pennsylvania and federal law, the [PCRA court] accorded undue weight to the equivocal testimony of former trial counsel to determine that former trial counsel did, in fact, advise [Raco] of the details of a formal plea offer that was communicated by the Commonwealth to former trial counsel and held open until the day of trial where the formal record is devoid of any evidence establishing specifically when former trial counsel allegedly discussed the plea offer with [Raco], where it was discussed, how it was discussed, what was discussed, and when, in fact, [Raco] presented evidence to the contrary, including, but not limited to, the testimony of three witnesses, including [Raco]?Brief for Raco at 5-7.
C. Whether, under both Pennsylvania and federal law, the [PCRA court] committed an error of law in determining that former trial counsel was not constitutionally ineffective for failing to advise [Raco] of a formal plea offer that was communicated by the Commonwealth to former trial counsel and held open until the day of trial where the formal record is devoid of any evidence establishing specifically when former trial counsel allegedly discussed the plea offer with [Raco], where it was discussed, how it was discussed, and what was discussed?
D. Assuming arguendo that former trial counsel advised [Raco] of the details of a formal plea offer extended by the Commonwealth prior to trial and [Raco] rejected the same, whether, under both Pennsylvania and federal law, former trial counsel was, nonetheless, constitutionally ineffective where the Commonwealth communicated said offer to former trial counsel on the day of trial and it is wholly undisputed that former trial counsel failed to communicate the re-extension of that offer to [Raco]?
E. Whether, under both Pennsylvania and federal law, the [PCRA court] improperly construed and weighed the evidence to find that trial counsels' ineffectiveness did not prejudice [Raco] because [Raco] allegedly failed to show that he would, in fact, have accepted the Commonwealth's formal plea offer had said offer been communicated to [Raco] by the former trial counsel?
We begin with the legal principles that govern this case.
This Court analyzes PCRA appeals "in the light most favorable to the prevailing party at the PCRA level." Commonwealth v. Rykard , 55 A.3d 1177, 1183 (Pa. Super. 2012). Our "review is limited to the findings of the PCRA court and the evidence of record" and we do not "disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error." Id. Similarly, "[w]e grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions." Id. (citations omitted). "[W]here the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary." Finally, we "may affirm a PCRA court's decision on any grounds if the record supports it." Id.Commonwealth v. Rigg , 84 A.3d 1080, 1084 (Pa. Super. 2014).
Pennsylvania has recast the two-factor inquiry regarding the effectiveness of counsel set forth by the United States Supreme Court in Strickland v. Washington , 466 U.S. 668 (1984), as the following three-factor inquiry:
[I]n order to obtain relief based on [an ineffective assistance of counsel] claim, a petitioner must establish: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's actions or failure to act; and (3) petitioner suffered prejudice as a result of counsel's error such that there is a reasonable probability that the result of the proceeding would have been different absent such error.Commonwealth v. Reed , 971 A.2d 1216, 1221 (Pa. 2005) (citing Commonwealth v. Pierce , 527 A.2d 973, 975 (Pa. 1987)). Trial counsel is presumed to be effective, and a PCRA petitioner bears the burden of pleading and proving each of the three factors by a preponderance of the evidence. Commonwealth v. Rathfon , 899 A.2d 365, 369 (Pa. Super. 2006); see Commonwealth v. Meadows , 787 A.2d 312, 319-20 (Pa. 2001).
The requirement that counsel be effective extends to the plea bargaining process. Accordingly, trial counsel has an affirmative duty to communicate all plea offers to his or her client. See Missouri v. Frye , ___ U.S. ___, 132 S.Ct. 1399, 1408 (2012). A PCRA petitioner who claims that counsel was ineffective for failing to communicate an offer still must demonstrate that he or she was prejudiced by counsel's failure to communicate a plea offer. Id. at 1409-10.
Raco's issues can be considered collectively. In general terms, Raco is challenging the PCRA court's credibility determinations and the legal conclusions drawn therefrom. The PCRA court has thoroughly addressed these issues in its two opinions. We have reviewed the certified record, the briefs of the parties, and the applicable law, and conclude that the PCRA court's determinations are supported by the record and its legal conclusions are correct. We adopt the PCRA court's comprehensive analysis disposing of Raco's issues in both its January 29, 2015 opinion and its March 25, 2015 opinion. Copies of those opinions are attached hereto for convenience.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/4/2015
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