J-S64006-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

FRANK ROSELLI

                            Appellant                  No. 327 EDA 2016


            Appeal from the PCRA Order Entered December 22, 2015
             In the Court of Common Pleas of Montgomery County
               Criminal Division at No: CP-46-CR-0000820-2011


BEFORE: STABILE, SOLANO, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                       FILED NOVEMBER 15, 2016

        Appellant, Frank Roselli, appeals from the December 22, 2015 order

dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-46. We affirm.

        On April 12, 2012, a jury found Appellant guilty of burglary and theft

by unlawful taking.1         On January 10, 2012, the trial court sentenced

Appellant to 25 to 50 years of incarceration pursuant to 42 Pa.C.S.A.

§ 9714(a)(2).2      Appellant filed a timely post-sentence motion on July 19,

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 3502 and 3921, respectively.
2
    That section provides:

(Footnote Continued Next Page)
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2012. The trial court denied the post-sentence motion on October 14, 2012.

After Appellant failed to file a direct appeal, the PCRA court permitted

Appellant to file a direct appeal nunc pro tunc.         This Court affirmed the

judgment of sentence on January 13, 2015.            On July 23, 2015, Appellant

filed this timely first PCRA petition. Appointed counsel filed a supplemental

petition on October 19, 2015.           The PCRA court denied relief on December

22, 2015, and this timely appeal followed. Appellant raises a single issue for

our review:

            Whether trial counsel was ineffective in failing to realize
      that a plea offer of 15 to 30 years for the charge of burglary was
      for an illegal sentence because it exceeded the statutory
      maximum of 10 to 20 [years] for a felony of the first degree.

Appellant’s Brief at 3.

      The parties engaged in an unsuccessful plea negotiation prior to trial.

One of the Commonwealth’s offers was 15 to 30 years of incarceration.

                       _______________________
(Footnote Continued)

      (2) Where the person had at the time of the commission of the
      current offense previously been convicted of two or more such
      crimes of violence arising from separate criminal transactions,
      the person shall be sentenced to a minimum sentence of at least
      25 years of total confinement, notwithstanding any other
      provision of this title or other statute to the contrary. Proof that
      the offender received notice of or otherwise knew or should have
      known of the penalties under this paragraph shall not be
      required. Upon conviction for a third or subsequent crime of
      violence the court may, if it determines that 25 years of total
      confinement is insufficient to protect the public safety, sentence
      the offender to life imprisonment without parole.

42 Pa.C.S.A. § 9714(a)(2).



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Appellant argues that his counsel was ineffective for failing to advise him

that the 15 to 30 year offer was an illegal sentence.3

       To establish ineffective assistance of counsel, a petitioner must plead

and prove that the underlying issue is of arguable merit, that counsel had no

reasonable strategic basis for his or her act or omission, and that counsel’s

failure prejudiced the petitioner. Commonwealth v. Pierce, 527 A.2d 973,

975 (Pa. 1987).        The PCRA court denied relief in this case because it

believed counsel’s testimony that Appellant was unwilling to accept any of

the Commonwealth’s offers. We must determine whether the PCRA court’s

ruling is supported by the record and free of legal error. Commonwealth

v. Lesko, 15 A.3d 345, 358 (Pa. 2011).

       At the December 9, 2015 hearing on Appellant’s PCRA petition, trial

counsel testified that Appellant might have accepted an offer within the

guideline range, but was not willing to accept a harsher sentence:

             I think it was a guidelines sentence which was a good deal
       lower, a good, good deal lower. I think he might have accepted
       that. I don’t think there was any way in the world he was – from
       my recollection that he was accepted 15 to 30 or even 10 to 20.

N.T. Hearing, 12/9/15, at 27. Counsel also stated on cross-examination that

Appellant possibly would have accepted a guideline range sentence. Id. at

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3
   No statutory authority exists for a 15 to 30 year sentence in this case.
Burglary, a first-degree felony, carries a statutory maximum of 20 years. 18
Pa.C.S.A. § 1103(1). Section 9714(a)(2), the third strike law, mandates a
minimum of 25 years.



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41. Counsel believed the Commonwealth’s lowest offer was 10 to 20 years.

Id. at 43-44.

     Thus, the record confirms the PCRA court’s finding that Appellant was

unwilling to accept the Commonwealth’s plea offer. Furthermore, we agree

with the PCRA court’s conclusion that counsel’s alleged failure to advise

Appellant of the illegality of a 15 to 30 year sentence did not prejudice

Appellant. The record reflect that Appellant was unwilling to accept a 15 to

30 year sentence, or even a 10 to 20 year sentence if offered.      Rather,

Appellant wanted the Commonwealth to agree to a guideline range

sentence.   Unsuccessful in that negotiation, Appellant chose to go to trial

and risk a conviction and sentence under § 9714(a)(2).

     We have concluded the record supports the PCRA court’s findings, and

we discern no legal error. We therefore affirm the order.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/15/2016




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