J-S23007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

ELVINO ALBERTO CAGNARDI

                            Appellant                 No. 3246 EDA 2015


                  Appeal from the PCRA Order October 1, 2015
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0002980-2011


BEFORE: PANELLA, J., OTT, J., and FITZGERALD, J.*

JUDGMENT ORDER BY PANELLA, J.                            FILED MAY 19, 2016

        Appellant, Elvino Alberto Cagnardi, appeals pro se from the order

entered on October 1, 2015, in the Court of Common Pleas of Monroe

County, which denied his petition filed pursuant to the Post Conviction Relief

Act (“PCRA”).1 We affirm.

        Cagnardi entered an open guilty plea to aggravated assault, stemming

from his admission that he pointed a gun at his ex-girlfriend’s head, pulled

the trigger, and then repeatedly struck her over the head with the gun after

it failed to discharge. The trial court subsequently imposed a sentence of



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*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S.A. §§ 9541-9546.
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nine to eighteen years’ imprisonment. The trial court denied Cagnardi’s post-

sentence motion. This Court affirmed the judgment of sentence.

       On June 11, 2015, Cagnardi filed a timely pro se PCRA petition. After

providing Rule 907 notice, the PCRA court dismissed Cagnardi’s petition. This

timely appeal followed.

       On appeal, Cagnardi alleges that his trial counsel was ineffective for

failing to present mitigating evidence showing that his ex-girlfriend was

abusive toward him during their relationship, for failing to advise him of the

difference between a plea bargain and an open plea, and for failing to

support his decision to withdraw his guilty plea. Cagnardi also argues that

the trial court abused its discretion by refusing to admit certain mitigating

evidence and by denying his request to withdraw his guilty plea.2

       “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. Super. 2013) (citation omitted). “[Our]

scope of review is limited to the findings of the PCRA court and the evidence
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2
   These claims are not cognizable under the PCRA. Cagnardi previously
raised his claim that the trial court refused to admit certain mitigating
evidence in his direct appeal, and this Court ruled on its merits; thus, the
claim has been previously litigated and is barred from postconviction review.
See 42 Pa.C.S.A. § 9544(a)(2). Cagnardi’s claim that the trial court abused
its discretion by denying his request to withdraw his guilty plea is waived
because he could have raised it at a prior proceeding, yet he failed to do so.
See 42 Pa.C.S.A. § 9544(b).



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of record, viewed in the light most favorable to the prevailing party at the

PCRA court level.” Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa.

2012) (citation omitted). In order to be eligible for PCRA relief, a petitioner

must plead and prove by a preponderance of the evidence that his conviction

or sentence arose from one or more of the errors listed at 42 Pa.C.S.A. §

9543(a)(2). These issues must be neither previously litigated nor waived.

See 42 Pa.C.S.A. § 9543(a)(3). “[T]his Court applies a de novo standard of

review to the PCRA court’s legal conclusions.” Commonwealth v. Spotz, 18

A.3d 244, 259 (Pa. 2011) (citation omitted).

      We have reviewed the briefs of the parties, the certified record, and

the trial court’s well-written Notice of Proposed Dismissal Pursuant to

Pa.R.Crim.P. 907, which it adopted in its Pa.R.C.P. 1925(a) opinion. After

careful review, we have determined that the Honorable Arthur L. Zulick, in

his Rule 907 notice, ably and comprehensively disposes of the issues

presented on appeal. We affirm based on that opinion. See Notice of

Proposed Dismissal Pursuant to Pa.R.Crim.P. 907, at 3-11.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/19/2016


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