J. S16041/16

NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee :

: v. : : MELISSA M. BUCANO, : : Appellant : No. 2278 EDA 2015 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.: FILED APRIL 18, 2016 Appellant, Melissa M. Bucano, appeals from the order enter ed 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 Co urt 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.* * *J. S16041/16

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After a jury trial, [Appellant] was convicted of [insurance fraud (nine counts), criminal attempt to commit theft by deception (three counts), forg ery (three counts), corrupt organizations (two counts), dealing in proceeds of unlawful activity, and criminal conspiracy. 1 ]. [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 filed June 24, 2013) (unpublished memorandum). 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 In an unpublished memorandum, this Court affirmed Appellant’s judgment of sentence on June 24, 2013.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 timel y 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 Appel lant 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

1 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).J. S16041/16

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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. Cou nsel 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 negotia ted deals. 2 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 Restricte d 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 h ad interfered with the attorney - client relationship and plea negotiations because she

2 Although Appellant entered a guilty plea in 2011, she subsequently withdrew the plea and negotiations thereafter continued.J. S16041/16

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“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, th e 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 “b uyer’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 recei ved 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 e ncouraged 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, interfer ing 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 Not ice 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.J. S16041/16

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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 c ourt 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 rel ief 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 po stconviction 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 preponderanceJ. S16041/16

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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. Com monwealth 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.
Joseph D. Seletyn, Esq. Prothonotary Date: 4/18/20161

Fraud, th ree counts of Co n s p iracy to Co mmit T h eft by Dece ption, o n e cou nt of T heft w i th two cou nts of Co r ru pt O rga ni zati ons, o n e cou n t of Dea lin g in Proceeds of thirty -one c ri mes, many of which we re f e l onies
. Specifica ll y , Petit i one r was c h arged a l o n g wi t h severa l co- d efe n da nts incl u d i ng h e r mot her a n d brot h er, was c h a rged w it h gra n d jury prese nt men t reco mm e n di n g th at Pe ti tioner be cr im ina lly c h arged, Petitioner, Followi n g an Att orney Ge n e ra l i n vest igation i nt o insurance fraud resulti n g i n a Bac kgro u nd t he reaso n s that fo ll ow , w e will de ny the pe titi on. Sect ion 954 1 et. seq., in w h ich she a ll eges that h er tri a l atto rn ey was i neffective
. For ( " Petitioner") fo r re l ie f unde r t he Pos t - Co nv ict i on Relief Act ("PCR A "), 42 Pa
. C
. S
. A. This case is before t h e Court on t h e peti t ion of defendant Melissa Bucano OPI N ION D efend a nt MELISSA M . BUCANO , NO . 7 81 CR 2 010 

### v . COMMONWEAL TH OF P EN NSYLVA N IA COURT OF COMMON PLEAS OF MONRO E COUNTY

FORTY-T HIRD J UDICIAL DISTRICT COMMONW E AL TH OF PENNSYLVA N I A Circulated 03/30/2016 09:35 AM2 1 Commonwea l th's Amended Comp l a i nt , fil ed Septe m be r 13 , 20 11. 2 Judge S i bum pres i ded over p re - tri a l matters , tr i a l, and Pet i t i o n er's d i rect appeal. The PCRA petit i on was assigned to the unders i gned
. 1 2/13/201 1 , pp. 13- 1 5)
. The motion was granted an d ba i l w as revoke d
. he rse l f based on both prio r su i cide atte m pts a n d ongoing threats of suicide
. ( N
. T
. , he l d a n d Petitione r was g ran t ed leave to wit hd raw h er p l ea. At t h e hea r ing, t h e prose motion to withdraw h er pl ea . Ultimately , on Dece m ber 1 3, 2011 , a hea ri n g was T h eft
. O n N ovembe r 10 , 20 1 1 , despite bei n g re p rese n ted by counse l , P etitioner filed a co u nts (one as o r igi n a ll y charged and one amende d count) of Cons p i racy to Co m mit Late r, on Se p tember 8, 2011, Petit i one r ente red a writte n gui l ty p l ea to two con d ition she refused to meet. Commonwea l th co n ditioned t h e p l ea . on Peti t i o n er's testifying against her mothe r, a g raded as felonies of the t h i rd degree
. However, th e plea was not ente red because the count of Conspiracy to Co m m i t Insurance F ra ud an d o n e count of Theft by Deception, S p ecifica ll y , on J uly 5 , 2011 , a hearing was h e ld before the Honorab l e J en n ifer Harlacher Sibu m ( " tria l judge " ) 2 to allow P etitioner to enter into a gui l ty pl ea to one b u t later withd rew the second
. p leas on P etitioner's beha lf
. Petit i oner rejected t he first p l ea offer and t h en acce p ted Before tria l counsel ' s invo lvement, pri o r attorneys tw i ce negot i ated favorab l e s h e c l aims w as ineffective. Ventrella, Esq. ( "tria l co u nse l ") , her th i rd lawye r and tri a l counsel , is t h e atto rn ey w h om Up through tria l , P etitione r was re p rese nt ed by three attorneys. M ichae l A. F orgery, and one coun t of Ins u rance F raud
. 1 by Decept i on , three counts of Attempt to comm i t T h eft by Deception , eight co un ts of3

strategy . O n seve ra l occasions , t r ial counsel informed Pe~itione r of the ri sks of go i ng to refu se d t o pl ea d an d P et i tione r disagreed with what counsel believed was a w i nni n g t h at accep t ing th e p lea was i n P etitioner ' s best inte rest , especially s i nce her mother . m isde m eano r offenses w it h which she had been charged. While trial counsel f elt t h ere l o n ger stat e sentence that Petitioner f aced if conv i cted of the multiple fe l ony and t hat t h e pl ea would resu l t in a county sentence of six months , as opposed to the much pl ea , o p en u n t il com m ence m e n t of t r ia l , o n P etit i oner's beha l f
. Tria l counsel be l ieved At t he sa m e t i me , trial counse l , like his predecessors , negot i ated a favorab l e 27, 29 - 3 1 , 37 - 38 , 44 , an d 69 - 73 . See N
. T ., 4/18/2012 , pp . 6 - 15 ). st rat egy d u ri n g closing arguments by threatening to object. N
. T ., 7/ 15/2014 , pp . 1 7- 23 , before a n d du ri n g tr ial. In fact , Petitioner prevented trial counsel from fu ll y arguing his b l a m e cast o n her mother
. As a result , there were disagreements over strategy both over Peti t ioner
. H owever, Pet i tioner did not like th is strategy and did not want to h ave c h ose was to blame t he mothe r and argue that the mother exerc i sed undue i nfl uence m inor an d co n tinue d pas t the time she became an adult , the strategy trial counsel Pet itio n er a n d ot h ers , i ncl ud ing her co - defendant mother, began wh i le Petitio n er was a t r ia l st rat egy. Since t he c r iminal ente r p r ise that gave rise to the charges filed aga in st After h is appoint m ent, trial counsel began to develop a theory of the case and a at t he M onroe County Cor rectiona l F acility up through sentencing m otio n , bai l w as set at $250,000
. Unable to post ba il, Petit i oner rema i ned incarce rat ed was g ra n ted l eave to w i thdraw
. On January 18 , 2012 , on Petit i one r' s ba i l mod i fi cation O n Dece m ber 28 , 201 1 , tri al counsel was appo i nted after her second attorney . , , 1: Ji4

t r ia l , t he maxi mum sente n ces s h e f aced, an d t he g u i d e l ine sentencing ranges . Each time , h e advis ed an d strongly en courag ed h e r t o take t h e p lea
. N one t he l ess ,

. acknow l edg i ng t h at s h e kn e w the ri s ks, P e t i t io n e r ref u sed to pl ead
. N
. T ., 7/15/201 4 , p p . 1 4 -15 , 18 , 3 4- 36 , 44 , 63-6 4 , and 70 - 7 4 . See N
. T. , 3/23/2012 , pp . 2 - 19 and N
. T. , 7/ 18/201 2 , pp. 2, an d 3 6 - 42)
. Trial cou n sel me t with Pe t i t ione r seve ral ti m es to discuss t he pl ea off er a n d t r ial st rat e gy . O n s om e occasi o n s, P et itio ner' s m ot her a n d h er m other's att o rn ey were p resent so that m atters co uld be di s cussed g l oba ll y . B ased <? n h is obs ervations a nd meetings w i t h P etitioner, a s well a s Petitio n e r ' s d i sagre eme nt wi t h t ria l strategy and ref u s al to acc ept a pl e a , t ri al co un se l b e cam e conce rn ed that P eti ti oner' s mot he r , w ho was h e r ce ll m ate at the cor rectional facility , w as i nfluen c ing Pet i t io ner ag ai n st act i n g i n her own best i nt e rests . S p e ci fi call y, h e w as co n ce rn e d t hat " the m other was n ever going to plead to everythi n g and was sta ndi ng i n th e way a nd t h e m other w as be i n g very mu c h - ad v i s i ng her d a ught e r n ot to do anythi n g e i ther and j u st stan d wit h he r ( N .T. , 7/15/201 4 , p. 18). " He raise d h i s concerns with th e tr ia l j udg e in a conf ere n ce severa l w eeks before tria l. H e aske d the t ri a l j udge to h e lp se p a rat e P e titi o n e r an d h er mot he r. H e so ught to se parate the two because he wa s " ho p ing t hat if I t a lked to [ P et i t i oner) [ about t he pl ea] a n d then she w ent ba ck by h erse l f i n st e ad of tal ki n g t o he r m othe r a b o u t it t h at sh e wo uld t hin k

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. . qoa l
. was to separate - he t. so.that her.rnothe cwo ul d
. ; . ·· · · · - . . not influ ence h er d ecis i o n ( N
. T
. , 7/1 5/20 14 , p. 44 )
. " At t ria l co u nse l 's re q uest, t h e t ria l judge contacted t h e jail an d as ke d th at t h e two be se p arated
. N
. T ., 7/15/20 14 , p p . 1 8, 22 - 23 , a nd 44 .5 3 Althou gh not c ompletely clear, it app e ars that the conference at which trial counsel asked the tri al j udg e to help s eparate Petitioner and her mother occurred on the same date as this hearing . -· · .· .· . . , _ . . . . . . . . _ ~~

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### 9 1_j_~~ge, .· to . . contc1 ct . t he j a i l
. .. a n d
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### a. result ;

Petitioner was moved back to general populati o n. effectuated at his request. At or a ro und t he fi rst evi dent i a ry day of t r i al , trial counsel to have her moved out of the RH U
. He was to ld that suc h a m ove co uld not be 23. When trial counsel later found out where pe ti tio n er had bee n p l aced , he att emp t ed place to put her if she and her mother we re to be separated. N.T. , 7/1 5/2014 , pp . 22- at the PCRA hearing that Petitioner was placed i n RHU beca u se the j a il had no other Neither trial counsel nor the trial judge asked for t h at placemen t. Tr i a l counsel testified mother, the correctional facility placed Pet i tioner in t he restricted h ous i ng un it ( " RHU "). On the same day, in response to t he request to separate Pe ti t i oner a n d h er N.T. , 7/18/2012, pp. 2 and 36-42 . risks she faced at tr i al, Petit i oner would not ag ree t o the plea
. Id. at 9 and 19 . See companies referenced in the crim i nal i n format i on . Id. at 7 . Desp i te be i n g ad vi sed of t he refused to admit to any wrongdo i ng w i t h regard to Met Life , one of t h e i nsurance mother's attorney . Id
. pp . 4-5 . Though Pe ti tioner insisted s h e w an t ed t o plead , she was taken so that Petitioner could spea k w it h tr i a l co unsel , h er m oth er , a n d h er further with his client. N
. T ., 3/23/ 12, pp . 2 -19 .The request was granted a n d a recess plea and trial counsel asked the tr i al j udge fo r s o me add i tional ti me t o d i s cu ss t h e plea Petitioner was given another opportun i ty to ente r the p l ea t hat t r i a l cou n s e l h as negotiated
. 3 At the start of the hear i ng , Pet i t i oner ra i sed a n i ssue wi t h t he t erms of the On March 2 3, 2 0 1 2, a hear in g was co n ve n ed be fo re t h e tri al j ud g e dur ing w h ic h6 4 Petitioner's mother, who had s imilarly rejected all ple a offers , w as al so convicted of multiple crimes and given a long sentence. appear in person and participated by video conference from her state correctional Supreme Court of Pennsylvania denied Petitioner's petition for allowance of appeal. (Pa
. Super
. , filed June 24, 20 . 13)(memorandum opinion)
. On Oct obe r 31, 2013, t he affirmed the judgment of sentence
. Commonwealth v . Bucano, No
. 2280 EDA 2012 Subsequently, Petitioner filed an appeal. On June 24, 2013, the Superi or Court Her alternative minimum sentence was calculated to be thirty - seven months, fifteen days
. 4 ordered to pay restitution
. Petitioner was found to be eligible for the RRRI program . ninety months incarceration , followed by two years of consecutive probation, and On July 18, 2012 , Petitioner was sentenced to an aggregate te r m of forty - five to Theft by Deception , and one count of Forgery
. F orgery . Petitioner was acquitted of four counts of Insurance F raud, four counts of Fraud , three counts of Attempt to commit Theft by Deception, and three counts of of Unlawful Activities, Insurance F raud, Theft by Deception, e i ght counts of Insurance Proceeds of Unlawful Activity, one count of Conspiracy to Commit Dealing i n Proceeds one count of Conspiracy to Commit Corrupt Organizations, one count of Dealing in On April 25, 2012. the jury convicted Petitioner of one count of Corrupt Organizations, Commonwealth sought and was granted permission to withdraw one count of forgery. began on April 16, 2012 and concluded on April 25, 2012 . During trial, the Trial began with jury selection on April 4, 2012. The evidentiary portion of trial tll ij • I

·- ··· · · · -, --a.--,: .,.· ·. ·· ~ ..... . ,:, ·· ·- .. 

### I,here~ft~r! Petitioner f.il_ed a P~RA petition
. Counsel was . appqi11t~d .., , a~d
. filed

_an amended petition
. A hearing was held on July 15, 2014. Petitioner waived her right to7 the presumption that counsel rendered effect i ve assistance
. Commonwealth v
. Basemore, 560 Pa
. 258, 277 n . 10, 744 A.2d 717, 728 n. 10 (2000)
. To obta i n relief on a whe re the Strickland/Pierce test applies, the analysis begins w i th f:i ~cp e, . 5 ?. 7 ~-~ . d 973 (Pa
. 1987), which requires a defen
. ~cint allegi~g in ~

_ff~
. C?t( ~en~s~ . t o demonstrate that he was prejudiced by an act or omission of h i s attorney. In cases Washington, 466 U.S. 668 (1984), as adopted in Pennsylvania by Commonwealth 

### v. Defendant ' s ineffective assistance of counsel claims implicate Strickland v. Discussion Exhibit A. After the records were filed, both parties submitted b r iefs
. Exhibits A-C and Petitioner's Motion to Supplement record, filed November 4, 2014 , reasons . Pet i tioner's Motion to Compel Production of Records, filed August 29, 2014 , and then was placed in G/Max from March 23, 2012 to Ap r il 17, 2012 fo r "d i sciplinary" March 15 , 2012 for "d i sciplinary" reasons, was placed back into general populat i on , documents received from the jail show that Defendant was p l aced in the RHU on Ultimate ly , PCRA counsel received the records and filed them of record. The much longer than expected. In fact, it took seve ral filings and a conference or two . and a bri efing schedule was set. Obtaining records from the correctional facility took and he r placement in the RHU. Additionally, a transcript of the hearing was ordered Monroe County Correctional Facility regarding Petitioner's incarceration i n the facili ty so that he could obta i n and submit to the Court and opposing counsel records from the At the end of the hearing, PCRA counsel requested that the reco rd be left open exam i ned both witnesses called by Petitioner. testified on her own behalf. The Commonwealth called no witnesses , bu t cross inst i tution. During the hearing , Petitioner presented the testimony of trial counsel and8 reasonab l e basis element, we do not question whether th e re we re ot h e r mo re logical courses of action whic h cou n se l cou ld have p u rsued ; rather, we must examine w he th e r cou n se l' s decis i ons had any reasonable bas i s ." [Commonwealth v

.] Hanible, [30 A.3d 426 ,] 4 39 [ ( Pa
. 20 11 ) ] (ci t at ion o m i tt e d )
. We will conclude that counsel's strategy l ac ke d a reasonab l e basis only if the petitioner proves th at a f o regone alternative " offered a. potential. for

. . ' . . . . . . - . . . - - . . . · · - . . . - success substant i ally g reate r than the co u rse act u ally purs u e d ." [ Co mm o n wealth v. ] Spo t z, [18 A.3d 2 44 ] 260 [P a . 20 11] (ci tatio n omi tted ). To establ i sh the third , th e prej ud ice ele m e nt , t he p etitioner mu st show that there is a re a so n a bl e p robab ili ty that the outcome of the proceedings wo uld h ave bee n different but for counsel's action or in a ctio n . Id. v. H arvey, 8 1 2 A. 2 d 11 90 , 1 1 99 ( P a . 2002)
. With regard to the second , the 20 1 3 ) ; Commonwealth v. Washington, 927 A.2d 586, 603 (Pa
. 2007); Commonwealt h purs u e a base l ess o r m e ritl ess c l aim
. Commonwealth v . Rone y, 79 A.3d 595, 60 4 (Pa. A co ro ll ary t o t h e fi rst ele m ent, co u nsel cannot be found i neffective fo r fa ili ng t o M a ll ory, 9 41 A. 2 d 686 (Pa. 2008) , cert. denied, 555 U.S. 884 ( 2008) 2008); Commonwealt

h v . Gwynn, 9 4 3 A.2d 940, 945 (Pa. 2008 ); Commonwealth v . Te d fo r d, 960 A. 2 d 1 , (Pa
. 2008); Commonwealth v. Dennis, 950 A.2d 945, 953 ( P a. Commonwealth v. Dennis, 1 7 A.3d 297 , 301 ( P a . 2011)
. See Commonwealth v . c la i m of ineffective assistance of counsel, a pet i tioner m u st reb u t that pres um ption an d demonstrate that counsel's p erfo r mance was deficient , and that such performance prej ud i c e d h i m . Strickland v. Washington, 466 U
. S
. 668 , 687-9 1 , 1 0 4 S.Ct. 2052 , 80 L.Ed
. 2d 674 ( 198 4 )
. In our Co mm on w ea lth , we have rearticulated the Strickland Cou rt 's p e rfo rm ance and prej udice inq u iry as a three- p rong test. S p ec ifi ca ll y, a pet i tioner mu st show : (1 ) the underlying c l a im i s o f a rg u ab l e merit ; (2) no reasonable basis existed for co un se l' s act ion o r inaction ; and (3 ) counse l' s error ca u se d p rejud ice s u ch t hat there is a reasonab l e probabil i ty th at t he resu l t of the p roceeding would have been different abse n t suc h er ro r . Commonwealth v . Pi erce, 515 Pa
. 153 , 1 58-59 , 527 A.2d 973, 975 (1987)
.

'


### . ,



### ·i

, Ii9

S up er. 1 999

) (citing Commonwealth v. Ellis, 700 A.2d 948, 960 ( P a . Su p e r. 1997)). ext e nt of tria l p repa ratio n ." Commonwealth v. Ho w ard , 732 A.2d 1213 , 12 1 5 (Pa. " [t] h e l e n gt h of tim e dedicated t o client consultation affords no basis fo r i n fe rrin g the . Commonwealth v. Colavita, 993 A.2d 87 4 , 88 7 ( P a. 2010 )( ci tations omitted)
. Further, are concerne d , counsel ' s assistance is deemed const i tutionally effective if he c h ose a partic ul a r cou rse that had some reasonable basis designed t o effect u at e h is cl ient's i n te rests . A finding that a chosen strategy l acked a reasonab l e b asis is not wa rranted unless i t can be concluded that an a lt ernat ive n ot c h ose n offered a potential for success substantia ll y greater t h a n the cou rse actually pursued
. To demonstrate prejud i ce , the p et iti o n er m ust s h ow that there is a reasonable probab i lity that , but for counse l 's e r ro r or o mi ssion , the result of the p roceed i ng would have bee n d iffe re n t. a n d tactics 1 996); Commonwealth v . Mizell , 4 25 A.2d 4 2 4 ( Pa
. 1981 ). Where matters of st rategy d efense t act i cs and st rategy. See Commonwealth v. Fo w l e r , 670 A.2d 153 ( Pa
. Super. Ad diti o n a ll y , t ri a l co un se l has broad disc retion to determ i ne the co urs e of l ac k of develo p me n t. See Commonwealth v. Steel e, 961 A.2d 786 ( Pa
. 2008 ). cl aim , t h e p et itioner is not e n title d to relief and the court may find the cla i m wa ived for p eti t ione r fa i ls to · p rope rl y plead all three prongs , or , havi ng done so , to develop the p etitione r cannot p revail unless he or she properly develops the claim
. Thus , when a Si mil a rl y, because claims of i neffective assistance of counsel are not self - proving , a p rongs h ave bee n met. Commonwealth v . Basemore, 744 A.2d 717 (Pa
. 2000)
. dismissed on that basis alone w i thout the need to determ i ne whether the othe r two or s h e fai l s to p rove . any one of the prongs , the i neffectiveness cla i m may be Since a petitioner must prove all three prongs of the St rick la nd/Pi ercet est , i f he Roney , 79 A.3d at 60 4 .10

th at s h e wo uld have t ake n a pl ea an d , if so , what the terms she wo ul d have accepted cr um b l es b ecause eve n aft e r a ll this time , P et i tioner has still not affirmatively stated inte rrupt t hat p ro~~ss s h o ul d also fo rm the basis for

_ PCRA re l ief ." Petitioner's Brie f if') S upp o rt of Am e nd e d P CR A P etition , p . 3 (unnu m b e red)
. Howeve r, the foundation pl ea pro cess , t he n i n e ff ect ive assis t ance · of counsel d u ring pl ea negotiations that axi o m at i c t hat if a d efe n da n t h as the right to effective ass i stance of counsel d uri ng a Ini t i a ll y, t he foun d at io n of P etitione r ' s cl a im seems to be that " [i]t sho ul d b e b oot l ess . a n d ri f e w it h m istru st th at it caused P e t itione r to reject all p lea offers
. Th i s argument is to P et i tione r 's pl ace m e nt i n th e R HU , the attorney/client re l ationshi p was so broken m att e r t o seg regat e Pe ti tioner from her co - d efendant mother prior to tria l , thus l eading S p ec i fica lly, P e ti tione r a rg u es t hat because trial counsel asked the trial ju d ge in t h is P eti t ione r' s B r ief i n S u pport of Amende d PCRA Petition , p . 1 ( u n nu m bered)
. of pl ea offe rs was met with d istr u st and u l timate ly were rejected d u e to that m ist ru st." to t he p oi n t t h at pl ea negotiat ions w e re extreme ly ham p ered and any communication actions he too k pr io r t o tri a l "i rret r ievab l y broke[ ] down the attorney/client re l ationship In th is case , P eti t ione r fi rst cl ai m s that tria l counsel w as ineffective because Da v is, 55 4 A. 2 d 1 0 4 , 1 11 ( P a. S up er. 1989). d i d n ot l ike the st rategy o r beca u se the st rategy was unsuccessfu l. Commonwealth v . su ff ic i en t p roo f
. Id. T h us, a p eti t ione r is not entitled to re li ef simply because he or she trial , t ria l co u nse l can n ot be d ee m e d to be ineffective for l ack of p reparation w i t h out i n ad e qu ate pre p a rat io n and it is shown that counsel m et with the petitioner p rior to Vvh ere a p etiti one r ha s n ot p rovid e d a ny evidence to sup p ort her a ll egation of ' !
. I11

negotiations were hampered must, at m i nimum, make th e same s how i ng. T h is s h ould plea and recite its terms , it follows that a pet i t i oner who i s me rely a rg u i n g t h at p l ea alleged ineffective assistance of counsel must s h ow that s h e wou ld h ave accep te d a If a petitioner who is not informed of a plea o r wh o rej e cts a p l ea be cause of Lafle

_ r, 132 S
. Ct. at 1385 .

but for the ineffective advice of counse l t h ere i s a reasonable probability that t he plea offer would h ave bee n presented to the court (i
. e. , that the defendant w ould h ave accepted the plea and t he prosecu ti on wou l d n ot h ave withdrawn it in light of i nterven i ng ci rcumstances ), t h at t h e court would have accepted i ts terms , and that the conviction or sen t ence, or both , under the offer' s t erms would have been less severe than under the j u d gment and sentence that in fact were i mposed
. defendant who rejects a plea offer must show that , However , the High Court further held that i n order to prove i neffectiveness , a accused. If an attorney fails to fulfill this duty , he may be found to b e i neffecti ve . prosecution to accept a plea on terms and condit i ons that may be favorab l e t o the duty to timely and meaningfully commun i cate to the ir cl i e n ts forma l offers from the attorneys during plea negot i ations. Under Frye and La fl er , defense counsel have a seminal cases from the High Court that expla i n the dut i es owed by cri m i nal defense (2012) and Lafler v

. Cooper

,_ U
. S ._, 132 S.Ct. 1 376 , 182 L.Ed.2d 398 ( 2012 ), the Supreme Court in Missouri v . Frye, _ U
. S
. _, 132 S
. Ct. 1 3 9 9 , · 1 82 L
. Ed
. 2d 37 9 T his analysis is consistent with the hold i ngs and rationale of the Un i ted States plea she would have accepted, then she cannot prove the requis i te prejudice. pied guilty
. If she does not or canno t make that assert i on and re ci te the terms of the of counsel based
. on gui l ty plea negot i ations must at least asse rt that she would have would be
. I t seems to us that a peti ti one r a sk ing fo r a finding of ineffective ass i stance iJ 

### ~· .·I

., 1i 12 ' 

### ., .: I! : 1 

### :, ii m ot h e r. The third and fina l offer was rejected because there was an i n su rance

T he fi rst off er was rejecte d because Petitioner d i d not want to test i fy aga i n st he r p rior offers) for reaso n s t h at h a d noth i ng to do w i th alleged mistrust of trial counsel. Third , . it is clea r that Petitioner rejected the Commonwealth ' s f i nal offe r (and s h e be se p arate d from he r mot he r on the first day of tri al. reg a rd, P eti t ioner testifie d t hat she first became aware that trial counsel had requested th at t r ia l counsel h ad aske d to have she and her mother separated at the j ail. I n this read i n g of t h e reco rd and Pet i t i oner ' s incons i stent test i mony, before she was aware rej e cte d by P et i tioner before she was placed in restr i ctive housing and , under any S eco nd , as a lso noted, the Commonwealth's th i rd and final offer was made and B ot h off ers w e re ma de an d rej ected long before trial counsel represented her. F irst, a s not e d , Petitioner rejected the first two offers negotiated on he r behal f
. s eve ra l reaso n s . bro ke n a n d ri fe w i t h m istrust that it caused her to reject all plea offers is baseless fo r Add ition all y , Petitione r ' s claim that the attorney /c l ient relationsh i p was so max imum sen t ences s h e f ace d , an d the applicable guideline sentenc i ng ranges. i nform e d o f t h e r isks of going to tria l , the benefits of the p l ea that was offered , the a n d her m ot h er ' s attorney; an d 3) the record amply demonstrates that Petitioner was i n rest r icte d h ous i ng, Petitioner abjectly refused to accept the Commonwealth ' s fina l offe r, o p e n u ntil t r ia l , d esp it e ext ra opportunity to speak with her attorney , her m other, bu t late r wit hdrew it; 2 ) after t r ial counsel became i nvo lved but before she was placed Petitio n er first rejecte d one favorable plea and then accepted another favorable plea be es p ecially t r ue in this case since : 1) before trial counsel become i nvolved,13

ass e rti n g . N. T
. , 4/ 18/1 2, p p . 6- 1 5 . S p ecifically , Petitioner stated on the record that she coun se l 's o p e n ing st at e m e nt a n d his defense strategy, not the mistrust she is n ow to fi re t r i a l cou n se l , th e basis fo r Petitioner's assert i on was that she disliked t rial P e tit ione r to fi re tr i al cou n se l. Wh i l e i t is t rue that , two trial d ays later, P etitionerwa nt ed co urt . H ow eve r , not hi n g i n th e reco rd from the first d ay of tria l shows any att e mp t by se p aratio n fro m he r m ot he r. H e r recollection was that this was p l aced on the record i n coun se l on the fi rst d ay of t ri a l b a sed on her discovering his invo lvement with h er i ss u e w as not c re di b l e. Fo r exa mpl e, Petitioner testified that she attempted to fi re trial re l ease d fro m R HU
. N .T
. , 7/1 5/201 4 , p . 27 . In contrast, P etitioner's testimo n y on t his t est ifi e d th at h e d i d n ot notice any change in their relationshi p after Petitioner was pl e a a n d tr ia l p rocesses is belie d by the record
. On this issue, trial counsel credib ly Fou rth , P eti t io n e r 's c l aim that she had come to mistrust trial counsel during the PCRA hea rin g was both inconsis t en t an d incre d ible
. a ny ple a offer du e to mi st ru st o f trial counse l , and her testimony to that e ff ect at the du ri ng e ith e r the M a rc h 23, 20 1 2 hearing or the sentencing hearing mentio n rejecti ng sen t enc i ng hea ri n g . N
. T., 7/1 8/2012, pp. 2 an d 36 -4 2)
. P etitioner did not, at a n y time b e li e f th at M et Lif e s h oul d not have been included was also discussed duri n g her 7, 9 , an d 1 9; N
. T
. , 7/1 5/20 14 , 63-6 4 . P etitioner's rejection of the plea based o n he r because s h e wou ld not a dmit to any wrong d oing against Met Life
. N .T
. , 3/23/20 1 2, pp . 20 1 2 h ea r i n g an d the PCRA hea r ing, that she did not accept the fina l p lea offer en tere d on the s e con d o ff er . I ndeed, P etitioner was adamant, at both the Ma rch 23 , have b ee n i nc lud e d , a belie f t hat a l so factored into her withdrawal of the p lea she company , M et Lif e , inc luded i n one o f the counts that P etitioner did not believe shou ld

-, : i , , •J 1 i : I : :j I , , ,; i1 4

encouraged he r t o acce pt t h e fin a l pl ea . N
. T
. , 7/15/2 0 14 , pp. 70-71 , 73-7 4 . This is going to tri a l , inc lu ding t h e severe sen t ence she f ace d , a nd that he repeatedly i neffective n ess, P e ti tioner ac k nowl e d ges th at t ri a l co u nse l infor m ed her of the risks o f rece i ved aft e r go in g to tri a l an d b ei n g con vi cte d of twe n ty c r imes
. Even while asserti n g res u lted in con v iction of fewe r cr im es an d a s i g n i fi ca ntl y shorte r sentence tha n she case P etitioner was p rese nt ed w ith three favo rable plea off e rs , all of which would have based on " buye r 's re m o rse," not mi st r u st of counse l. As noted, over the course of this submitted bri efs, i t i s c l ear to t h is Co urt th at P etit i oner's a ll egation of ineffectiveness is Fina ll y, aft e r observi ng P et i ti o n e r t es tify , rev iewi ng t h e reco rd , and reading t h e consequence . subsequent ly p l aced i n 

### RHU w as a n unfort u n ate , bu t un so l icited and unforeseen , to request t h at P etitioner be se p arat e d fro m h e r moth e r. The fact that Petitioner was Petitioner faced i f convi ct ed, it wa s o bjectivel y an d st rategically reasonable fo r co u nse l counsel bel i eved P etit i o n er sho uld h ave acce pted , and the l engthy sentence that lega l interests fro m t hat of h e r m ot he r, P eti t ioner's reject ion of p lea offe rs that tri a l influence Peti t ione r 's mot h er o bv io u s ly h ad ove r her, the d ivergence of Petitione r ' s facts , i nc lu d i ng t h e histo ry of t h is case, t he crimes c h arged, Petitioner' s age , t h e rejection of the fi n a l pl ea off e r a nd of co u nsel ' s t ria l st rategy is s p ecio u s . Give n t he her mother, wh i ch request l ed to h e r ti m e in RHU, w as a punitive response to her P etit i oner's re l ated co n te n t i on t hat t ri al counse l 's request to separate her from dur i ng tri al. dis p a rag i ng h e r mot he r. Id. at pp . 10 -1 1 . T he a ll eged m istrust w as simply not raise d felt tria l counse l 's openi n g st ate m e nts w e re " u ntrut hf u l " because he made stateme nt s 11 

# li

i : , : ;i 

## :l

.. · : · .ll ·, , ! 1



### ..15

demonstrates that trial counsel informed Petit i oner of the final plea offer and the ineffectiveness claim , the claim is substantively baseless
. Again , the record amply In the alternative, if Petitioner is deemed to have preserved her second Commonwealth v. Steele, supra . meaningful analysis, we find this issue waived for lack of development "). See also Super
. 2014) ("[A]s Appellant has cited no legal authorities nor developed any c l aim due to lack of development. Commonwealth v . Antidormi

, 84 A.3d 736 , 754 ( Pa
. not argued in Petitioner ' s submissions
. As a result, Petitioner has waived her second Petitioner' s brief that mentions the second ineffectiveness claim
. The issue is simply Initially, the clause quoted in the preceding paragraph is the only portion of disposed of quickly. Support of Amended PCRA Petition , p . 1 (unnumbered ). This content i on may be trial strategy or possible avenues of defense with her prior to trial." Petit i oner' s Brief in counse l because he "didn't prepare [her] for testifyi ng at her tr i al and didn ' t discuss Petitioner's second claim is that trial counse l rendered i neffective assistance of ineffectiveness
. dice"
. She lost. Regret for her decision does not allege , much less prove , plea advice , interfering with his trial strategy, and going to trial , Petitioner " rolled the trial, and chose to go to trial. To use a colloquialism, by disregard i ng trial counsel's favorable plea offer, understood both the benefits of the plea and the risks of going to and go to trial. Rather, this is a case where a defendant was properly informed about a offe r or prejudiced by counsel's deficient performance in advising her to reject the offer simply not a case where a de f endant was misinformed by counsel of a favorable p l ea

I, 

### !~ J : : i 1 1 : i I I l ii16

objectively rational and reasonable. In fact , even the modified argument that trial winninQ argument by Petitioner
. Id. at 30-31 . Viewed in light of the applicable standards , trial counsel ' s strategy was prepared months in advance, but was prevented from making what he considered a 30 . Nonetheless , trial counsel still managed to argue most of what he had already defense during closing argument by threatening to object during his argument. Id. at her mother
. Id. at 37-38 . Further , Petitioner prevented trial counsel from arguing his fire trial counsel after he gave his opening because Pet i tioner felt he was disparag i ng defense; but the defense was what she didn't like ." Id. at 38 . In fact, Petitioner tried to arguments were over that. " Id. at 27 . Trial counsel testified that he "had a very good case in terms of blaming her mother and she didn ' t want me to do that ; so most of our "the main problem we had was that she [Petitioner] disagreed with my the o ry of the Further, as noted above and as trial counsel testified dur i ng the PCRA hearing , In contrast, Petitioner' s testimony on this issue was inconsistent and not credible
. preparing Petitioner for her testimony
. N
. T ., 7/ 15/2014 , pp . 18 , 27 - 28 , 30 , and 37-38 . believed Petitioner should testify , and prepare for trial. Trial preparation included occasions prior to trial to discuss the final plea , outline his trial strategy, explain why he In addition, trial counsel credibly testified that he met with Petitioner on multiple counsel's trial strategy. counsel's strategy , establishes without doubt that Petitioner was acutely aware of Petitioner's own statements made during trial in which she specifically challenged severe sentence and penalt i es she faced if found guilty at trial. The record , including 

### lll I ' 

## , , I I i '17

prove the requisite prejud i ce . Accordingly , we enter the following : merit, reasonable bases existed for counsel's actions, and Petitioner clearly failed to In sum, Petitioner's claims of ineffective assistance of counsel lack arguable supra; Commonwealth v. Ellis, 700 A.2d 948, 960 (Pa. Super
. 1997). deemed to be ineffective for lack of preparation
. See Commonwealth v . Howard

, uncontested that trial counse l met with Petitioner prior to trial , trial counsel cannot be not provided any evidence to support her allegation of inadequate preparation and it is course actually pursued. Colavita, supra, 993 A.2d at 887 . Finally, since Petit i oner has strategy which would have offered a potentia l success substantially greater than the 111 (Pa
. Super
. 1989). In this regard, Petitioner has not suggested an alternative was unsuccessfu l or on ly partia ll y successful. Commonwealth v. Davis, 554 A.2d 104, Pet i tione r i s not entitled to relief simp ly because she did not l i ke the strategy or that it Under these circumstances, even i f her second claim is not deemed waived, that Petitioner was acquitted of ten charges. counsel was able and permitted by petitioner to make proved partially successful in 

# ~, I18

C c: Br ian S
. G agl i one , Esq Kelly M
. Sekula , Deputy Attorney Genera l ,.-.....> DENIED
. 

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~ -u (/) )> __c c.o ORDER Defend a nt MELISSA M
. BUCANO , . NO. 781 CR 2 0 10



### v . COMMONWEALTH OF PENNS Y LVA N IA

COURT OF COMMON PLEAS OF M O N ROE COUN TY

FORTY-THIRD JUDIC I AL DISTR I CT COM M ONWEAL TH OF PENNS YLVA N IA

de f e n da nt M e l issa M
. Bucano for relief under the P os t -Conviction Relief Act is AND NOW , th is 29th day of June, 2015 , it is ORDERED that the petition of