J-S52036-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v. ANTHONY JOSEPH RACO Appellant No. 286 WDA 2015

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.: FILED NOVEMBER 4, 2015 Anthony Raco appeals the January 28, 2015 order di smissing his petition for relief pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. The PCRA court has comprehensi vely 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 de viate sexual intercourse by forcible compulsion, sexual assault, unlawful restraint, and indecent assault by forcible compulsion. 1 Raco initially hired Arthur T. McQuillan, Esq. to represent him at trial. However , Raco eventually

____________________________________________ 1 18 Pa.C.S. §§ 3123(a)(1), 3124.1, 2902(a)(2), and 3126(a)(2).J-S52036-15

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disengaged Attorney McQuillan, and hired Sally Fric k, Esq., and George Bills, Esq., to represent him. With Attorneys Frick and B ills, Raco waived his right to a jury trial, and instead elected to proceed wit h 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. 2 On April 30, 2014, the trial court sentenced Raco to twenty-four to forty-eight months’ incarceration. Pursuant to the Sex Offender Regist ration 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 r equirements of SORNA for his lifetime. Raco filed a post-sentence motio n, in which he alleged that SORNA was unconstitutional. The trial court denied the motion. Raco did not file an appeal. Instead, he proceede d directly to the collateral stage of his case by filing a PCRA petit ion on October 23, 2014. Raco alleged that prior counsel were ineffective fo r 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 guil ty to indecent assault, which would have resulted in a lesser sentence and a shorter reporting period under SORNA. Raco alleged that trial counse l never communicated

____________________________________________ 2 The facts presented at the non-jury trial in supp ort of the conviction are immaterial to our disposition of this appeal. Thus, we will not recite them here.J-S52036-15

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the standing offer to him, and that he would have a ccepted it had they done
so. The PCRA court held multiple hearings on the petit ion. The court has summarized trial counsel’s 3 testimony as follows: At the evidentiary hearing [at which counsel testif ied], trial counsel acknowledged that while the assistant distr ict attorney extended a plea offer immediately before trial, the offer was not communicated or discussed with [Raco], and trial co unsel rejected the offer. However, trial counsel testifi ed that throughout their representation of [Raco], they had discussed many possible resolutions with [Raco]. These resol utions included discussions related to the possibility of Accelerated Rehabilitative Disposition, which was objected to b y the victim, and a plea offer of sexual assault, which was discu ssed with and ultimately rejected by [Raco]. Trial counsel testi fied that, at some point while representing [Raco], there were di scussions relating to a plea offer of indecent assault. Howe ver, this plea offer carried with it mandatory reporting requireme nts, “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 a nd incarceration. After trial counsels’ “extensive di scussions” with [Raco] about the possibility of pleading guilty to indecent assault and the potential ramifications of such a guilty pl ea, [Raco] rejected the plea offer due to the fact that indece nt assault carried mandatory reporting requirements under SORN A. Despite [Raco’s] prior rejection of the plea offer, the assistant district attorney advised trial counsel, immediatel y before trial, that a plea offer of indecent assault remained on t he 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] wa s concerned, that

____________________________________________ 3 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 doe s not disrupt our analysis or disposition of this case.J-S52036-15

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issue had been decided.” Trial counsel testified t hat 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 t rial, trial counsel believed the issue of a plea deal was “a mo ot point” because [Raco] had previously rejected the offer of indecent assault with the attached mandatory reporting requi rements. PCRA Court Opinion (“P.C.O.”), 1/29/2015, at 2-3 (c apitalization modified for clarity; references to notes of testimony omitt ed). The PCRA court specifically credited trial counsel ’s testimony. Id. at 6. Relying upon that testimony, the court dismissed Ra co’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 r ationale that it set forth in its January 29, 2015 opinion in support of dismi ssing Raco’s PCRA petition as dispositive of all but one of Raco’s issues. Th e PCRA court then addressed the final issue raised by Raco that had n ot 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, th us, requiring vacation of conviction and grant of new trial, wher e at no relevant time did former trial counsel advise [Raco ] of the details, or even the existence, of a formal plea of fer that was communicated by the Commonwealth to former trial co unsel and held open until the day of trial?J-S52036-15

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B. Whether, under both Pennsylvania and federal law, t he [PCRA court] accorded undue weight to the equivocal testi mony of former trial counsel to determine that former trial counsel did, in fact, advise [Raco] of the details of a formal p lea offer that was communicated by the Commonwealth to former tria l counsel and held open until the day of trial where the formal record is devoid of any evidence establishing speci fically when former trial counsel allegedly discussed the plea o ffer with [Raco], where it was discussed, how it was discusse d, 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]? C. Whether, under both Pennsylvania and federal law, t he [PCRA court] committed an error of law in determining tha t former trial counsel was not constitutionally ineffective for failing to advise [Raco] of a formal plea offer that was commu nicated by the Commonwealth to former trial counsel and hel d open until the day of trial where the formal record is d evoid of any evidence establishing specifically when former tria l counsel allegedly discussed the plea offer with [Raco], whe re it was discussed, how it was discussed, and what was discu ssed? D. Assuming arguendo that former trial counsel advised [Raco] of the details of a formal plea offer extended by t he Commonwealth prior to trial and [Raco] rejected the same, whether, under both Pennsylvania and federal law, former trial counsel was, nonetheless, constitutionally in effective 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 reextension of that offer to [Raco]? E. Whether, under both Pennsylvania and federal law, t he [PCRA court] improperly construed and weighed the evidenc e to find that trial counsels’ ineffectiveness did not prejud ice [Raco] because [Raco] allegedly failed to show that he wou ld, in fact, have accepted the Commonwealth’s formal plea offer had said offer been communicated to [Raco] by the former tri al counsel? Brief for Raco at 5-7. We begin with the legal principles that govern thi s case.J-S52036-15

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This Court analyzes PCRA appeals “in the light mostfavorable to the prevailing party at the PCRA level.” Commonwealth v. Rykard , 55 A.3d 1177, 1183 (Pa. Super. 2012). Our “revie w is limited to the findings of the PCRA court and the e vidence of record” and we do not “disturb a PCRA court’s rulin g if it is supported by evidence of record and is free of lega l error.” Id. Similarly, “[w]e grant great deference to the factu al 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, ou r standard of review is de novo and our scope of review is plenary.” Finally, we “may affirm a PCRA court’s decision on any groun ds if the record supports it.” Id. Commonwealth v. Rigg , 84 A.3d 1080, 1084 (Pa. Super. 2014). Pennsylvania has recast the two-factor inquiry rega rding the effectiveness of counsel set forth by the United St ates Supreme Court in Strickland v. Washington , 466 U.S. 668 (1984), as the following threefactor inquiry: [I]n order to obtain relief based on [an ineffectiv e assistance of counsel] claim, a petitioner must establish: (1) t he underlying claim has arguable merit; (2) no reasonable basis e xisted for counsel’s actions or failure to act; and (3) petiti oner suffered prejudice as a result of counsel’s error such that there is a reasonable probability that the result of the proce eding 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 bea rs the burden of pleading and proving each of the three factors by a preponderance of the evidence. Commonwealth v. Rathfon , 899 A.2d 365, 369J-S52036-15

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(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 petit ioner who claims that counsel was ineffective for failing to communicate an offer still must demonstrate that he or she was prejudiced by counse l’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 determinat ions and the legal conclusions drawn therefrom. The PCRA court has th oroughly 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 comprehensi ve 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 her eto for convenience. Order affirmed.J-S52036-15

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary
Date: 11/4/2015requireme nt s am ounte d t o a li fe tim e r eg i s trati o n . O n M ay 9, 2 01 4, D efe n dan t fil e d a Pos tSex O ffe nd e r Re g is tr ation an d N o tifi c ation A ct (h erei n aft e r, " S O RN A" )

. I n this case, th o se furthe r s en tenc ed t o ab ide 

### by th e r eg ul ati on s an d regis tr atio n v erifi catio n re qu i reme n t s o f the l ess th an twe nty- fo ur (2 4) m o nths and not more th an f o rty-e i g ht (4 8 ) mo nth s . De fe nd an t wa s April 3 0 , 2014 , De fe nd ant was sente n ce d t o in carcer ati o n i n th e So me rs et Co u n ty J ail fo r n ot w as co n vic ted of S e xual A ssaul t, 1 8 Pa

. C .S.A. § 3 1 24 .1 , a fe l o n y o f the s econ d d egree . On se q . (herein aft er , th e " PCRA" )

. On Jan u ary 2 4 , 2 014 , fo ll o win g a n on - j ury tri al , Defend ant (h e re inafter, the " Pe ti ti o n " ) pursu an t to th e P os t C on v iction R e li ef A c t , 42 P a . C .S. A. § 95 41 , e t T his m atte r i s befo re us on D ef end ant ' s P e tition for P o st- Co nvi c tion C oll ateral R e li ef MEMORANDUM Decembe r 3, 2 014 He arin g: 

# . Dani e l W. Rullo , E sq , F o r Defend ant : Lisa Lazzari-Str a siser , E sq . ; D i s tri c t Attorne y F o r the C ommo nw ealth: P E TIT IO N FOR PO S T- C ONVIC TI ON C OL LA TERAL RE LIE F Petitioner/D e fend ant
. ANT H ONY JOS E PH RA C O, NO. 20 9 C RlMIN AL 2 011



### v. ) IN THE COUR T O F COMMON P LE A S

) O F SO ME RS ET COUNT Y, ) P ENN SYLVANIA ) ) ) ) ) ) )

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Sentence Motion in which he challenged the constitutionality of SORNA. By Order of Court dated September 8; 2014; Defendant's Post-Sentence Motion was denied. Defendant's timely Petition followed. In the Petition, Defendant asserts that Trial Counsel's" failure to inform him of a standing plea offer denied him the effective assistance of counsel. Specifically, Defendant alleges that a plea offer was communicated to Trial Counsel by the Assistant District Attorney "long before [Defendant's] trial," and Defendant was never advised of said offer. (Petition at~ 9). The plea offer extended by the Assistant District Attorney is alleged to have been a formal offer, and consisted of a guilty plea to Indecent Assault, 18 Pa.C.S.A. § 3126, a misdemeanor of the second degree. Defendant further alleges that the formal standing plea offer "remained on the table" and the Assistant District Attorney "reminded [T]rial [C]ounsel of the standing [plea] offer up until the time of trial." Id. at ,i 14. Defendant contends that; despite reminders from the Assistant District Attorney, Trial Counsel never advised Defendant of the standing plea offer and Trial Counsel rejected said offer without consulting Defendant. Id. On December 3, 2014, we held an evidentiary hearing regarding the Petition. At the 

### evidentiary hearing; Trial Counsel acknowledged that while the Assistant District Attorney extended a plea offer immediately before trial, the offer was not communicated to or discussed with Defendant, and Trial Counsel rejected the offer

. (Evidentiary Hearing Transcript at pages 5-6, lines 15-25, 1-13, December 16, 2014); Id. at 23, lines 7-20. However, Trial Counsel testified that throughout their representation of Defendant, they had discussed many possible resolutions with Defendant. Id. at 8, lines 2-8. 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

3 Here, Trial Counsel includes both Sally A. Frick, Esq. and Georg e W. Bills, Jr., Esq. Circulated 10/07/2015 11:32 AMDefendant. Trial Counsel testified that, at some point while representing Defendant, 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." Id. at 12, line s 19-22. More specifically; Trial Counsel noted that; based on discussions with Defendant; it appeared that Defendant wanted to avoid two things: SORNA reporting requirements and incarceration. Id.
at 13, lines 7-14. After Trial Counsel's "extensive discussionjs]" with Defendant about the possibility of pleading guilty to Indecent Assault and the potential ramifications stemming from such a guilty plea ; Defendant rejected the plea offer due to the fact that Indecent Assault carried mandatory reporting requirements under SORNA. Id. at 25, lines 9-10. Despite Defendant'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 Defendant 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." Id. at 16, lines 15-16. 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." Id. at 16; lines 19-21. Moreover, on the day of trial, Trial Counsel believed the issue of a plea deal was a "moot point" because Defendant had previously rejected the offer of Indecent Assault with the attached mandatory reporting requirements. Id. at 29-30, lines 21-25, 1-2. To be eligible for relief under the PCRA, Defendant must plead and prove by a preponderance of the evidence that his conviction resulted from the "[i]neffective assistance of counsel which; in the circumstances of [this] particular case; so undermined the truthdetermining process that no reliable adjudication of guilt or innocence could have taken place." Circulated 10/07/2015 11:32 AM4

42 Pa.C.S.A. § 9543(a)(2)(ii). In evaluating a claim of ineffectiveness, counsel is presumed to be effective, and it is Defendant's burden to show otherwise. Commonwealth v. Howard, 749 A.2d 941, 949 (Pa. Super. 2000); Commonwealth v. Witherspoon, 392 A.2d 1313, 1315 (Pa. 1978); see Strickland v, Washington; 466 U.S. 668, 689 (1984) (reasoning that the court's review of counsel's performance must be "highly deferential[,] ... indulg[ing] a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."). It is well settled that the Sixth Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution guarantee that the accused shall enjoy the right to effective assistance of counsel at all critical stages of a criminal proceeding. Commonwealth 

### v. Grant, 992 A.2d 152, 156 (Pa. Super. 2010) (citing Strickland, 466 U.S. at 684-86; Mempa v. Rhay, 389 U

. S. 128, 134 (1967)); see U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence."), The right to effective assistance of counsel "is mandated by the Sixth Amendment because lawyers 'are the means through which the other rights of the person on trial are secured,' and through which the prosecution's case is subjected to 'meaningful adversarial testing.'?' Grant, 992 A.2d at 156 (citing United States v. Cronic, 466 U.S. 648, 653-56 (1984)); see Commonwealth v, Pierce, 527 A.2d 973, 981 (Pa. 1987) (citing Strickland, 466 U.S. at 684-85) ("The Sixth Amendment right to counsel exists in order to protect the fundamental right to a fair trial."). Moreover; plea negotiations are a critical stage of a criminal proceeding where "criminal defendants require effective counsel." Missouri v. Frye,

_ U.S.

_ , _; 132 S.Ct 1399; 1407-08 (2012); accord Lafler v . Cooper,

_ U.S. _j _; 132 S.Ct 1376 (2012); see Padilla v. Kentucky, 599 U.S. 356j 364 (2010) (citing McMann v. Circulated 10/07/2015 11:32 AMR ic hard so n, 397 U. S. 759, 771 (1970)) ( " Before deci d ing whethe r to p lea d g u il ty, a defe n d an t i s e ntitl e d to ' the e ff

ectiv e assi s tance o f competent cou nse l

. ? ')

. Du ri ng p lea n eg o tiati o ns ,
anythin g l es s th an effective coun s el " might den y a d efe ndan t ' eff e cti v e re present ati o n b y counsel at the o nly stage when l eg al aid and a d v ic e would hel p him. ?' Id

. at 140 9 (qu o tin g M a s s iah v . Unite d State s, 3 77 U .S

. 201 , 204 (19 6 4)) (inte m al qu o t ation s o mitted)

. Thus, "as a gen eral ru le , d e fense coun s el has the duty to co mmunicate formal offer s from the pro s e c u ti o n to accept a ple a on terms and c onditions that m ay b e favorable to th e accu s ed. " Id. at 1408

. For reve r sal of a conviction based upon claim s that c o unsel's assistanc e w as i ne ffe c tive ;
a d e fend ant mu s t sh o w th at: (1) " counsel's pe rforman ce wa s de fici ent " and ( 2) " th e defi cie nt perfo rman c e pr e

judi ce d the defen se ." Strickland , 4 66 U. S. at 687

. Prej udi ce is sh own w h e re

" th e re is a reasonabl e prob abili ty that, b u t fo r c o un se l's unp rofe ssio n al err o rs , th e res ult of the pr o c ee d ing w o uld h av e b ee n di ff erent. " Id

. at 694

. In P enn sy lvani a ; the P C RA e ssentiall y
a d o pt s th e Stricklan d st an dard, und er whi c h o ur cou rt s h ave c reate d a thre e -pr o n ge d p erf o rm ance and prej udice te st. S pec ificall y ; P enn sy lvan ia l aw requires a p e tition e r to s h ow th at: (1) the underl y in g cl aim h as ar g u abl e m e rit; (2) no re a son ab l e b as i s e x i s te d fo r c o un se l' s acti o n or inac ti o n ; and (3) co uns e l ' s err o r caus e d th e prej u d ic e s u ch th at th e re is a reaso n ab l e probabili ty th at th e result of th e proc ee di ng w ould h ave be e n different ab sen t s u c h error, Co mm o nw e alth v. Pi e rc e, 52 7 A. 2 d 9 7 3 ( P a. 1 9 87 ); Comm o n wea lt h v , W ash ing ton , 92 7 A.2 d 586 ( Pa

. 2 007 )

. If a d efe nd ant fail s to mee t an y pro ng i n th e Pi erce te s t , th e n h i s or h er c l aim of in e ff e ctivenes s may be d en i e d

. Was hin g ton, 9 27 A ,2 d at 59 4

. H ere, th e te s ti mo ny p r e s en te d b y Trial C oun se l at the e v i d en ti ary h earin g e s t ab li shes th at Tri al C oun se l di d in fac t inf o rm Defe nd ant of the C o mmonweal th ' s pl ea o ffe r at s o me p o in t i n the p erio d of ti m e l ead in g up to D e f e nd an t' s tri al. Tri al C ou nsel te s ti fied th at th ey h a d Circulated 10/07/2015 11:32 AMf,

"a number of discussions with the [Assistant Distri c t Attorney]" and Defendant about "possible

re solutions" to this c ase . (Evidentiary Hearing Transcript at page 8 , lines 1-8, December 16, 2014). At one point, Trial Counsel discussed with Defendant th e possibility of Accelerate d Rehabilitati ve Disposition

. At yet another time, the Commonwealth extended a written plea offer of Se x ual Assault , a felony of the s ec o nd degre e, and Defend ant rejected this offer on the

a dvic e of Trial 

### Counsel. Finally , and most importantly, there existed a plea offer of Indec e nt Assault, a misdemeanor of the second degree. Trial Counsel testified that the plea offer of Indecent Assault w as communicated to and discussed extensively with Defendant , including discussions relating to the ramifications of pleading guilty to Indecent Assault. Id

. at 25, lines 9-1 O

. However , the plea offer of Inde c ent Assault was not acceptable to Defendant because it carried with it mandatory reporting requirements, and Defendant ultimately rejected the Commonwealth's offer. Id. at 12, lines 19-25. After thoroughly evaluating their testimony, we find Tri al Couns e l to be most credible. Indeed ; we must not ignore the fact that Trial Counsel are officers of the legal system, and h ave an ethical and profession al obligation to remain candid toward this Court. Pa. R.P

. C. 3

. 3; 

### see id. , cmt. 2 (explaining that a "lawy e r must not allow the tribunal to be misl e d by false
statements of

. . . fact or e vidence that the lawyer knows to be false

. "). 

### Furthermore, we find Trial Counsel's credibility to be bolstered by their 

### truthful and sincere admission that they did
not communic ate to or advise Defendant of the plea offer immedi ately before trial. After consid e ration of all circumstances 

### surrounding this case , we accept Trial Counsel's recollection of the facts. As such, we must decide if Trial Counsel ' s conduct fell below professional
st andards. There is no doubt that " as a general rule, defense counsel has the duty to communicate Circulated 10/07/2015 11:32 AM7

formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused , " Frye; 132 S

. Ct. at 1408

. The United States Supreme Court ; however, has indicated that there are perhaps exceptions to that general rule, although they have yet to explore what those exceptions may be. Id. However ; in Groves v , United State s; 755 F

. 3d 588 (7th Cir

. 2014), while deciding whether coun s el was constitutionally ineffective for not discussing a plea offer with a defendant; the United States Court of Appeals for the Seventh Circuit expressed one such e xception. Groves, 755 F.3d at 591. In that case, after the defendant ' s first attorney withdrew from the case ; the government extended a plea offer to the defendant. After discussing the offer with his second attorney, the defendant rejected the government's proposed plea agreement. Id. at 590 , Subsequently , the defendant ' s second attorney filed a motion to withdraw, which was granted. The United States District Court then appointed a third attorney to represent the defendant Throughout his representation of the defendant, the third attorney was unaware of the government's proposed plea offer. As such, the third attorney did not have any conversations with the defendant about the government's offer, and instead proceeded to trial. Id. at 591. After bis conviction, the defendant filed a motion claiming that the third attorney's "performance was objectively unreasonable because [the attorney] failed to discuss the government's ... plea offer with him." Id. The District Court entered judgment denying the defendant's motion, and the defendant appealed. On Appeal, the Seventh Circuit, relying on Lafler and Flye, acknowledged that '" lawyers must tell their clients about offers of plea bargains.?' Id. at 592 ( quoting Estremera

v. United States, 724 F.3d 773, 778 (7th Cir

. 2013)). However, the Court found that the defendant's firs t attorney "did just that and [the defendant] rejected the offer." Id

. The Court reasoned that "Lafler and Frye do not require subsequent counsel to press a plea offer on a Circulated 10/07/2015 11:32 AMCommonwealth's offer. Here, much like in Groves, Trial Counsel was not required to press

onto Defendant the 

### very plea offer which Defendant had previously rejected earlier in the legal process, and Trial Counsel was not ineffective for failing to do so. It is clear that Trial Counsel fulfilled the ethical and professional obligations that were owed to Defendant regarding the Commonwealth's plea offer. Furthermore, to the extent Trial Counsel's performance could be construed as ineffective, we find that Defendant suffered no prejudice. "To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel's deficient 

### performance, [a] defendant[] must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel." Frye, 132 S.Ct. at 1409. Furthermore, a defendant must "demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing

Based on his discussions with Trial Counsel, Defendant rejected the 16, 2014), defendant who has already rejected any such offer - nor is it per se prejudice for failing to do so." Id. Thus, the Court held that the third attorney's "failure to discuss the ... plea offer after [the defendant] had rejected it earlier in his criminal proceedings

. , . was not ineffective assistance of counsel." 

### Id. Although we are not bound by the Seventh Circuit decision in Groves, we find this decision to be most persuasive. In the case sub judice, the Commonwealth presented a plea offer to Defendant, and Defendant and Trial Counsel had "extensive discussion]s]" about the plea offer and its potential ramifications, including the attached reporting requirements mandated under SORNA. (Evidentiary Hearing Transcript at page 25, lines 9-10, December Circulated 10/07/2015 11:32 AMQ 4 We find there is a reasonable probability that the prosecution would not have cancelled the plea offer. Indeed, the plea was re-offered mere minutes before trial; thus, it seems unlikely that the Assistant District Attorney would have cancelled the plea offer immediately after communicating said offer. Moreover, we find it unlikely that the judge would not have accepted the plea offer. See Frye, 132 S.Ct. at 1410 (reasoning that "[i]t can be assumed that

... prosecutors and judges are familiar with the boundaries of acceptable plea bargains and sentences[;]" therefore "it should not be difficult to make an objective as s essment as to whether or not a particular fact or intervening circumstance would suffice, in the normal course, to cause prosecutorial withdrawal or judicial uonapproval of a plea bargain."). Here, there is nothing in the record that would lead us to find that the plea offer would have been withdrawn by the prosecutor or would not have been approved by a judge of this County. 5 In reaching this credibility determination, we considered the conflicting testimony of Trial Counsel and our observations of Defendant's tone, mannerisms, and behavior while testifying at the evidentiary hearing. mandatory reporting requirements. Additionally; we find it noteworthy that Defendant had and reporting requirements, and the plea offer would have, at the very least, carried with it Counsel. Furthermore, the testimony revealed that Defendant's aim was to avoid incarceration trial. In reaching this determination, we find that Defendant's testimony is not particularly credible, 5 as most of his claims were directly refuted by the credible testimony of Trial exists a reasonable probability that he would have accepted the plea offer immediately before We find Defendant has failed to satisfy his burden, as we are not convinced that there before the start of trial. standing plea offer if Trial Counsel had communicated the plea offer to Defendant immediately that there is a reasonable probability that he would have accepted the Commonwealth's Lafler, 132 S.Ct. at 1386. However, for prejudice to exist Defendant has the burden to prove either a conviction on more serious counts or the imposition of a more severe sentence." defendant "who goes to trial instead of taking a more favorable plea may be prejudiced from than those that he would have received by accepting the Commonwealth's plea offer. Indeed , a by having to stand trial and because of that he is now suffering penalties that are more severe lesser charge or a sentence of less prison time." Id. Defendant alleges that he was prejudiced the end result of the criminal process would have been more favorable by reason of a plea to a to accept it/' 4 Id. To establish prejudice; "it is necessary to show a reasonable probability that Circulated 10/07/2015 11:32 AMpreviously rejected the very plea offer that is the basis of his Petition. Finally; we must note that Defendant never testified that he would have accepted the Commonwealth's standing plea offer immediately before trial. During the evidentiary hearing, Defendant's attorney asked: "Would you have accepted that offer -- 

### today, knowing the situation, would you have accepted that offer in order to avoid incarceration and avoid the lifetime reporting responsibility?" (Evidentiary Hearing Transcript at page 5; lines 5-9 ; December 8, 2014) (emphasis added). Although Defendant responded in the affirmative, we do not believe that this hindsight question is the correct inquiry. Rather, to satisfy his burden; Defendant would need to establish that, regardless of his conviction and sentence, he would have accepted the plea offer 

### if it had been communicated by Trial Counsel. There is no doubt that, now knowing the ultimate outcome of his trial, Defendant would have taken the plea offer to avoid both a lengthy incarceration sentence and lifetime reporting requirements

. Yet what Defendant needed to establish is that there is a reasonable probability that he would have accepted the plea offer in order to avoid trial and the potential ramifications stemming from trial. He has failed to do so. Rather, what the totality of evidence establishes is mere sentence dissatisfaction, not prejudice. Accordingly ; we enter the following order: Circulated 10/07/2015 11:32 AM11

ORDERED that said Petition is DENIED. Post-Conviction Collateral Relief, in accordance with the foregoing Memorandum of Law, it is I ORDER 

# z, / JI" day of January 2015; upon review of Defendant's Petition for AND NOW; this COMMONWEALTH ) IN THE COURT OF COMMON PLEAS ) OF SOMERSET COUNTY, ) PENNSYLVANIA 

### v. )

) ) NO. 209 CRIMINAL2011 ANTHONY JOSEPH RACO, ) ) ) PETITION FOR POST-CONVICTION Petitioner/Defendant

. ) COLLATERAL RELIEF Circulated 10/07/2015 11:32 AM"Statement") , Defendant assert s the following: In his Rule l 925(b) Statement of Matters Complained of on Appeal (hereinafter, the Defendant's timely appeal followed. (hereinafter, the "Petition " ), which was denied by Orde r of C ourt dated January 28, 2015. motion was denied. Thereafter, Defendant filed a Petition for Post-Conviction Collate r al Relief Notification Act. Defendant filed a Post-Sentence Motion, and on September 8, 2014, said regulation s and registration verification requ irements of the Sex Offender Registr ation and months and not more than forty-ei g ht ( 48) months, and was further sentenced to abide by the was sentenced to incarceration in the Somerset County Jail for not less than tw e nty-four (24) Assault, 18 Pa

. C.S.A. § 3124.1, a felony of the second degree. On April 30, 2014, Defendant On January 24, 2014, following a non-jury trial, Defendant was convicted of Sexual statement of matters complained of on appeal, the following is our reply. Appellate Procedure 1925(a)

. Defendant having complied with our directive to file a concise TWs statement is issued in compliance with the directive of Pennsylvania Rule of

STATEMENT PURSUANT TO Pa.R.A.P. 1925(a)

Defendant. ANTHONY JOSEPH RACO,



### v. ) IN THE COURT OF COMMON PLEAS

) OF SOMERSET COUNTY, ) PENNSYLVANIA ) ) ) ) NO. 209 CRIMINAL 2011 COMMONWEALTH • I Circulated 10/07/2015 11:32 AM? (1) This Court erred in determining that former trial counsel for Defendant (hereinafter, "Trial Counsel") was not constitutionally ineffective where at no relevant time did Trial Counsel credibly testify that they advised Defendant of the details, or even the existence of, a formal plea offer that was communicated by the Commonwealth to Trial Counsel and held open until the day of trial; (2) This Court erred by according due weight to the equivocal testimony of Trial Counsel to determine that Trial Counsel did, in fact, advise Defendant o f the details of a formal plea offer that was communicated by the Commonwealth to Trial Counsel and held open until the day of trial where the formal record is devoid of any evidence estab1ishing when Trial Counsel allegedly discussed the plea offer with Defendant, where it was discussed, how it was discussed, and what was discussed, when, in fact, Defendant presented evidence to the contrary, including, but not limited to, the testimony of three witnesses, including Defendant; (3) This Court erred as a matter of law in determining that Trial Counsel was not constitutionally ineffective for failing to advise Defendant of a formal plea offer that was communicated by the Commonwealth to Trial Counsel and held open until the day of trial where the formal record is devoid of any evidence establishing specifically when Trial Counsel allegedly discussed the plea offer with Defendant, where it was discussed, how it was discussed, and what was discussed; (4) Assuming, arguendo, Trial Counsel advised Defendant of the details of a formal plea offer extended by the Commonwealth prior to trial and Defendant rejected the same, this Court erred as a matter of law in finding that Trial Counsel was not constitutionally ineffective where the Commonwealth communicated said offer to Circulated 10/07/2015 11:32 AM3 We must reit er ate that Trial Counsel's performance in this case was not constitutionally ineffective. Although,

for the purpose of being tho r ough, we addressed Defendant's prejudice argument in our Memorandum and Order entered January 28, 2015, an ultimate d e termination regarding prejudice to Defendant was unnecessary. offer has lapsed or been rejected because of counsel's deficient performance, [a] defendantl] A.2d 586 (Pa. 2007). "To show prejudice from ineffective assistance of counsel where a plea error. Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987); Commonwealth v. Washington, 927 reasonable probability that the result of the proceeding would have been different absent such That is, a defendant must show that counsel's error caused the prejudice such that there is a ineffectiveness prejudiced the defense. 3 Strickland v. Washington, 466 U.S. 668, 687 (1984). of ineffective assistance o f counsel, the burden is on the defendant to show that counsel's The law in this Commonwealth is well settled: in PCRA proceedings based upon claims offer been communicated to Defendant by Trial Counsel. Id. at 

## ,r 19. Defendant failed to show that he would have accepted the Commonwealth's plea offer had said context and weighing the evidence to find that Defendant was not prejudiced because matter complained of on appeal: that we erred by improperly construing a question out of further to clarify the January 28, 2015 Memorandum and Order in light of Defendant's final stated in our Memorandum and Order entered January 28, 2015. However, we briefly write (Statement at 

## ,r,r 15-19). We note that the reasons for the Order complained of are clearly

communicated to Defendant by Trial Counsel. have accepted the Commonwealth's formal plea offer had said offer been because, according to the Court, Defendant failed to show that he would, in fact, the evidence to find that Trial Counsel's ineffectiveness did not prejudice Defendant (5) This Court erred by improperly construing the question out of context and weighing failed to communicate the re-extension of that offer to Defendant; Trial Counsel on the day of trial and it is wholly undisputed that Trial Counsel ' I Circulated 10/07/2015 11:32 AM4 4 At the e videntiary hearing, PCRA Counsel asked Defendant "Would you have accepted [the plea] offer -- today, knowing the situation, would you have acc epte d that offer in order to avoid incarceration and avoid the Hf etime reporting responsibility?" (Evidentiary Hearing Transcript at p a ge 5, lines 5-9, Decemb er 8, 2014). Defendant answered this question in the affirmative. hearing. However, at that juncture, the onus was on Defendant to demonstrate that there context." Certainly, we reviewed this question in the context of the complete 

### evidentiary First, we submit that we did not "err

. . . by improperly construing the question out of Defendant was not prejudiced. We disagree. by considering it out of context and we erred by improperly weighing the evidence to find that In the Statement, Defendant contends that we misconstrued PCRA Counsel's 

### question" plea offer was not the correct inquiry. PCRA Counsel's hindsight question regarding whether Defendant would have accepted the Defendant had previously rejected the very plea offer that was the basis of his Petition; and (3) support of this holding, we found that: (1) Defendant's testimony was not credible; (2) the plea offer immediately before trial had it been communicated to him by Trial Counsel. In we were not convinced th at there existed a reasonable probability that he would have accepted and Order denying Defendant's Petition, we held that Defendant failed to satisfy his burden, as he would have received by accepting the Commonwealth's plea offer. In our Memorandum prejudice by standing trial and he is now suffering penalties that are more severe than those that it been communicated to him immediately before trial. Defendant alleged that he had suffered would have been different because he would have accepted the Commonwealth's plea offer had In the Petition, it was Defendant's contention that the result of his criminal proceeding S.Ct. 1399, 1409 (2012). they been afforded effective assistance of counsel." Mis s ouri v. 

### Frye,

_ U.S._,_, 132 must demonstrate a reasonable probability they would have accepted the earlier plea offer had Circulated 10/07/2015 11:32 AMs Again , i t sho ul d be n o ted th at De f endant te s tifi e d h e wo ul d h ave ac c epte d the Co mm onwealth 's p l ea offer,

" to da y, k n ow in g th e s itu a ti o n . " bee n co mmuni cate d t o him i mmediat e l y b efore tri al. 5 untruthfu l wh e n h e testifi e d th at h e w o uld h ave ac cep te d th e C omm o n wealth ' s p l ea offe r ha d i t D efe n d ant di d n o t su ffer prejud ic e wa s b ased o n ou r d e termin ati o n th at D efe ndan t wa s b ei n g u s that De fe nd an t l ac ked wh at w e belie ve to b e n eces s ary cre dibili ty
. As s u ch, our fi n d in g th at testi mony of Tri al C ouns e l an d th e fact s an d circumst an c e s s urr o undin g thi s c ase, it is cl ear to D efe ndant testifi e d c an be s t be d e s c rib e d a s defian t , an d wh e n c oupled w ith th e c o nfl ic tin g w e were abl e t o a s se ss h i s dem eanor , his a ctions , and his wor ds. T h e manne r in w hich truthfuln e ss . Indeed , this Co urt had th e a dv an tage o f se e ing D e fend ant te sti fy in p ers o n, and writin g, we submit th at Defend ant's tes tim o n y did n o t c arry w ith it a ce rt ain au ra o f d e termin ation th at Defend ant's tes tim o ny lacked c re dibility. Althou g h difficul t to artic u l ate in tone , mann erism s, and beh avior while te stifyin g . H e re, w e w rite t o again ex p re s s o ur 

### ' c onsideration o f (1) the c o nflictin g , credible testimony o f Trial C o un s el ; and (2) D efe nd ant ' s D e fend an t ' s P e tition base d in l arge part on his l ac k o f c redibili ty, w e e x press ed o ur Most i mport an tly, howe ve r, we con s idered De fe ndant' s cre dibility

. In den y i n g in reachin g our determi nation that Defendant failed to satisfy his burden. ab se nt our credibility determinations, b u t this question and answ e r w a s a factor we c o nsidered th at we would not have appli e d such s tri c t 

### interpretation to PCRA Counsel's hindsight que s tion in ord er t o avoid 

### trial and the 

### pote ntial ramific ations stemming fr o m trial. There i s little doubt Defendant did not direc tly te s tify th at h e would have ac c ep te d th e Commonw e alth 's plea off e r , basis of the evidenti ary he aring and Defendant's und erlyin g arguments , we found it tellin g that th e eff e ctive assist an c e of counsel. Fr ye, 132 S

. Ct. at 1409

. Whil e we c e rtainly und e r s tood the existed "a reasonabl e prob ability" he w o uld h ave ac c epted the pl ea offer had he been affo r ded Circulated 10/07/2015 11:32 AMFor Commonwealth: Lisa Lazzari-Strasiser, Esq.; District Attorney

For Defendant: Daniel W. RuHo, Esq. Dated: March 

# J/f

' 2015 Circulated 10/07/2015 11:32 AM