J. S16041/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,              :     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 entered 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 Court 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



      After a jury trial, [Appellant] was convicted of [insurance fraud
      (nine counts), criminal attempt to commit theft by deception
      (three counts), forgery (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 timely 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 Appellant 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).



                                     -2-
J. S16041/16


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. Counsel 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 negotiated 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 Restricted 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 had 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.



                                     -3-
J. S16041/16


“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, the 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 “buyer’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 received
     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
     encouraged 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, interfering 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 Notice 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.


                                     -4-
J. S16041/16



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 court 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 relief 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

postconviction 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 preponderance


                                     -5-
J. S16041/16


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. Commonwealth

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: 4/18/2016




                                    -6-
                                                                 Circulated 03/30/2016 09:35 AM




                   COURT OF COMMON PLEAS OF MONROE COUNTY
                          FORTY-THIRD JUDICIAL DISTRICT
                        COMMONWEAL TH OF PENNSYLVANIA



COMMONWEAL TH OF PENNSYLVANIA

              v.                                       NO.   781 CR 2010

MELISSA M. BUCANO,

              Defendant




                                         OPINION

       This case is before the Court on the petition of defendant Melissa Bucano

("Petitioner") for relief under the Post-Conviction Relief Act ("PCRA"), 42 Pa. C.S.A.

Section 9541 et. seq., in which she alleges that her trial attorney was ineffective. For

the reasons that follow, we will deny the petition.

                                       Background

       Following an Attorney General investigation into insurance fraud resulting in a

grand jury presentment recommending that Petitioner be criminally charged, Petitioner,

along with several co-defendants including her mother and brother, was charged with

thirty-one crimes, many of which were felonies. Specifically, Petitioner was charged

with two counts of Corrupt Organizations, one count of Dealing in Proceeds of



Fraud, three counts of Conspiracy to Commit Theft by Deception, one count of Theft




                                            1
    by Deception,   three counts of Attempt to commit Theft by Deception, eight counts of

    Forgery, and one count of Insurance Fraud.1

           Up through trial, Petitioner was represented by three attorneys. Michael A.

    Ventrella, Esq. ("trial counsel"), her third lawyer and trial counsel, is the attorney whom

    she claims was ineffective.

           Before trial counsel's involvement, prior attorneys twice negotiated favorable

    pleas on Petitioner's behalf. Petitioner rejected the first plea offer and then accepted

    but later withdrew the second.

          Specifically, on July 5, 2011, a hearing was held before the Honorable Jennifer

    Harlacher Sibum ("trial judge")2 to allow Petitioner to enter into a guilty plea to one

    count of Conspiracy to Commit Insurance Fraud and one count of Theft by Deception,

    graded as felonies of the third degree. However, the plea was not entered because the

    Commonwealth conditioned the plea. on Petitioner's testifying against her mother, a

    condition she refused to meet.

          Later, on September 8, 2011, Petitioner entered a written guilty plea to two

counts (one as originally charged and one amended count) of Conspiracy to Commit

Theft. On November 10, 2011, despite being represented by counsel, Petitioner filed a

prose motion to withdraw her plea. Ultimately, on December 13, 2011, a hearing was

held and Petitioner was granted leave to withdraw her plea. At the hearing, the



herself based on both prior suicide attempts and ongoing threats of suicide. (N.T.,

12/13/2011, pp. 13-15). The motion was granted and bail was revoked.

1
 Commonwealth's Amended Complaint, filed September 13, 2011.
2
 Judge Sibum presided over pre-trial matters, trial, and Petitioner's direct appeal. The PCRA petition
was assigned to the undersigned.

                                                   2
., ,
1:
Ji




               On December 28, 2011, trial counsel was appointed after her second attorney

        was granted leave to withdraw. On January 18, 2012, on Petitioner's bail modification

        motion, bail was set at $250,000. Unable to post bail, Petitioner remained incarcerated

        at the Monroe County Correctional Facility up through sentencing

               After his appointment, trial counsel began to develop a theory of the case and a

        trial strategy. Since the criminal enterprise that gave rise to the charges filed against

        Petitioner and others, including her co-defendant mother, began while Petitioner was a

        minor and continued past the time she became an adult, the strategy trial counsel

        chose was to blame the mother and argue that the mother exercised undue influence

        over Petitioner. However, Petitioner did not like this strategy and did not want to have

        blame cast on her mother. As a result, there were disagreements over strategy both

        before and during trial. In fact, Petitioner prevented trial counsel from fully arguing his

       strategy during closing arguments by threatening to object. N.T., 7/15/2014, pp. 17-23,

       27, 29-31, 37-38, 44, and 69-73. See N.T., 4/18/2012, pp. 6-15).

              At the same time, trial counsel, like his predecessors, negotiated a favorable

       plea, open until commencement of trial, on Petitioner's behalf. Trial counsel believed

       that the plea would result in a county sentence of six months, as opposed to the much

       longer state sentence that Petitioner faced if convicted of the multiple felony and

       . misdemeanor offenses with which she had been charged. While trial counsel felt there



       that accepting the plea was in Petitioner's best interest, especially since her mother

       refused to plead and Petitioner disagreed with what counsel believed was a winning

       strategy. On several occasions, trial counsel informed Pe~itioner of the risks of going to



                                                    3
              trial, the maximum sentences she faced, and the guideline                            sentencing ranges. Each

              time,     he    advised        and strongly          encouraged       her    to take the   plea.   Nonetheless,

             . acknowledging          that she knew the risks, Petitioner                 refused to plead. N.T., 7/15/2014,

              pp. 14-15,        18, 34-36, 44, 63-64, and 70-74.                 See N.T., 3/23/2012, pp. 2-19 and N.T.,

              7/18/2012, pp. 2, and 36-42).

                        Trial counsel met with Petitioner several times to discuss the plea offer and trial

              strategy. On some occasions, Petitioner's mother and her mother's attorney were

              present so that matters could be discussed globally.

                         Based <?n his observations and meetings with Petitioner, as well as Petitioner's

              disagreement with trial strategy and refusal to accept a plea, trial counsel became

              concerned that Petitioner's mother, who was her cell mate at the correctional facility,

              was influencing Petitioner against acting in her own best interests. Specifically, he was

              concerned that "the mother was never going to plead to everything and was standing

              in the way and the mother was being very much - advising her daughter not to do

              anything either and just stand with her (N.T.,                          7/15/2014, p. 18)." He raised his

              concerns with the trial judge in a conference several weeks before trial. He asked the

              trial judge to help separate Petitioner and her mother. He sought to separate the two

              because he was "hoping that if I talked to [Petitioner) [about the plea] and then she

              went back by herself instead of talking to her mother about it that she would think

.. -~=·~:   -,-.2?.Q~! !V!1<?{.E:.. cle:ar,!Y.· .. po.. ye~.   th~.. qoal.was to separate- het.so.that her.rnothecwould.; . ·····- ..

              not influence her decision (N.T., 7/15/2014,                      p. 44)." At trial counsel's request, the trial

              judge contacted the jail and asked that the two be separated. N.T., 7/15/2014, pp. 18,

              22-23, and 44.



                                                                            4
                                   On March 23, 2012, a hearing was convened before the trial judge during which

                            Petitioner was given another opportunity to enter the plea that trial counsel                                            has

                            negotiated.3 At the start of the hearing, Petitioner raised an issue with the terms of the

                            plea and trial counsel asked the trial judge for some additional time to discuss the plea

                            further with his client. N.T., 3/23/12, pp. 2-19.The request was granted and a recess

                            was taken so that Petitioner could speak with trial counsel,                                 her mother, and her

                            mother's attorney. Id. pp. 4-5. Though Petitioner insisted she wanted to plead, she

                            refused to admit to any wrongdoing with regard to Met Life, one of the insurance

                            companies referenced in the criminal information. Id. at 7. Despite being advised of the

                            risks she faced at trial, Petitioner would not agree to the plea. Id. at 9 and 19.                                      See

                            N.T., 7/18/2012, pp. 2 and 36-42.

                                  On the same day, in response to the request to separate Petitioner and her

                        mother, the correctional facility placed Petitioner in the restricted housing unit ("RHU").

                        Neither trial counsel nor the trial judge asked for that placement. Trial counsel testified

                        at the PCRA hearing that Petitioner was placed in RHU because the jail had no other

                        place to put her if she and her mother were to be separated. N.T., 7/15/2014, pp. 22-

                        23. When trial counsel later found out where petitioner had been placed, he attempted

                        to have her moved out of the RH U.                          He was told that such a move could not be

                        effectuated at his request. At or around the first evidentiary day of trial, trial counsel

-·· .· .·. . , _ .. . . . .. _ ~~_ked __t_he . t~i91_j_~~ge, .·to .. contc1ct . the jail ... and __ have ... P.e_titione~ .r:n_ovE?d_. .. As_ .. a.result;

                        Petitioner was moved back to general population.




                        3
                         Although not completely clear, it appears that the conference at which trial counsel asked the trial judge to help
                        separate Petitioner and her mother occurred on the same date as this hearing.

                                                                                        5
             tll
             ij•
             I




                                                  Trial began with jury selection on April 4, 2012. The evidentiary portion of trial

                                      began on April 16, 2012 and concluded on April 25, 2012. During trial, the

                                      Commonwealth sought and was granted permission to withdraw one count of forgery.

                                      On April 25, 2012. the jury convicted Petitioner of one count of Corrupt Organizations,

                                      one count of Conspiracy to Commit Corrupt Organizations, one count of Dealing in

                                      Proceeds of Unlawful Activity, one count of Conspiracy to Commit Dealing in Proceeds

                                      of Unlawful Activities, Insurance Fraud, Theft by Deception, eight counts of Insurance

                                      Fraud, three counts of Attempt to commit Theft by Deception, and three counts of

                                      Forgery. Petitioner was acquitted of four counts of Insurance Fraud, four counts of

                                      Theft by Deception, and one count of Forgery.

                                                  On July 18, 2012, Petitioner was sentenced to an aggregate term of forty-five to

                                      ninety months incarceration, followed by two years of consecutive probation, and

                                      ordered to pay restitution. Petitioner was found to be eligible for the RRRI program.

                                      Her alternative minimum sentence was calculated to be thirty-seven months, fifteen

                                    days.4

                                                 Subsequently, Petitioner filed an appeal. On June 24, 2013, the Superior Court

                                    affirmed the judgment of sentence. Commonwealth v. Bucano, No. 2280 EDA 2012

                                   (Pa. Super., filed June 24, 20.13)(memorandum opinion). On October 31, 2013, the

                                   Supreme Court of Pennsylvania denied Petitioner's petition for allowance of appeal.

·-······ -,--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 to

                                   appear in person and participated by video conference from her state correctional


                                  4
                                     Petitioner's mother, who had similarly rejected all plea offers, was also convicted of multiple crimes and given a
                                   long sentence.

                                                                                            6
institution. During the hearing, Petitioner presented the testimony of trial counsel and

testified on her own behalf. The Commonwealth             called no witnesses,    but cross-

examined both witnesses called by Petitioner.

        At the end of the hearing, PCRA counsel requested that the record be left open

so that he could obtain and submit to the Court and opposing counsel records from the

Monroe County Correctional Facility regarding Petitioner's incarceration in the facility

and her placement in the RHU. Additionally, a transcript of the hearing was ordered

and a briefing schedule was set. Obtaining records from the correctional facility took

much longer than expected. In fact, it took several filings and a conference or two.

Ultimately,   PCRA counsel      received the records and filed them of record. The

documents received from the jail show that Defendant was placed in the RHU on

March 15, 2012 for "disciplinary"    reasons, was placed back into general population,

and then was placed in G/Max from March 23, 2012 to April 17, 2012 for "disciplinary"

reasons. Petitioner's Motion to Compel Production of Records, filed August 29, 2014,

Exhibits A-C and Petitioner's Motion to Supplement record, filed November 4, 2014,

Exhibit A. After the records were filed, both parties submitted briefs.

                                        Discussion

        Defendant's   ineffective assistance of counsel claims implicate Strickland v.

Washington, 466 U.S. 668 (1984), as adopted in Pennsylvania by Commonwealth v.

f:i~cpe, .5?.7 ~-~.d 973 (Pa. 1987), which requires a defen.~cint allegi~g in~_ff~.C?t(~en~s~.

to demonstrate that he was prejudiced by an act or omission of his attorney. In cases

where the Strickland/Pierce test applies, the analysis begins with

              the presumption that counsel rendered effective
              assistance. Commonwealth v. Basemore, 560 Pa. 258, 277
              n. 10, 744 A.2d 717, 728 n. 10 (2000). To obtain relief on a
                                              7
                    claim of ineffective assistance of counsel, a petitioner must
                    rebut that presumption and demonstrate that counsel's
                    performance was deficient, and that such performance
                    prejudiced him. Strickland v. Washington, 466 U.S. 668,
                    687-91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In our
                    Commonwealth, we have rearticulated the Strickland
                    Court's performance and prejudice inquiry as a three-prong
                    test. Specifically, a petitioner must show: (1) the underlying
                    claim is of arguable merit; (2) no reasonable basis existed
                    for counsel's action or inaction; and (3) counsel's error
                    caused prejudice such that there is a reasonable probability
                    that the result of the proceeding would have been different
                    absent such error. Commonwealth v. Pierce, 515 Pa. 153,
                    158-59, 527 A.2d 973, 975 (1987).

       Commonwealth v. Dennis, 17 A.3d 297, 301 (Pa. 2011). See Commonwealth v.

       Tedford, 960 A.2d 1, (Pa. 2008); Commonwealth v. Dennis, 950 A.2d 945, 953 (Pa.

       2008); Commonwealth v. Gwynn, 943 A.2d 940, 945 (Pa. 2008); Commonwealth v.

       Mallory, 941 A.2d 686 (Pa. 2008), cert. denied, 555 U.S. 884 (2008)

             A corollary to the first element, counsel cannot be found ineffective for failing to

       pursue a baseless or meritless claim. Commonwealth v. Roney, 79 A.3d 595, 604 (Pa.

       2013); Commonwealth v. Washington, 927 A.2d 586, 603 (Pa. 2007); Commonwealth

       v. Harvey, 812 A.2d 1190, 1199 (Pa. 2002). With regard to the second, the

                    reasonable basis element, we do not question whether
                   there were other more logical courses of action which
                   counsel could have pursued; rather, we must examine
                   whether counsel's decisions had any reasonable basis."
                   [Commonwealth v.] Hanible, [30 A.3d 426,] 439 [(Pa.
                   2011 )] (citation omitted). We will conclude that counsel's
                   strategy lacked a reasonable basis only if the petitioner
                   proves
                      ..
                       ' .. .. that
                               . .  -a foregone
                                              . alternative
                                                   .        "offered
                                                                   . a.
                                                                     - potential.
                                                                        - ... ··- ... for
                                                                                       -
                   success substantially greater than the course actually
                   pursued." [Commonwealth v.] Spotz, [18 A.3d 244] 260
                   [Pa. 2011] (citation omitted). To establish the third, the
                   prejudice element, the petitioner must show that there is a
                   reasonable probability that the outcome of the proceedings
                   would have been different but for counsel's action or
                   inaction. Id.


                                                     8
 .,'
 ·i
,Ii
  Roney, 79 A.3d at 604.

         Since a petitioner must prove all three prongs of the Strickland/Piercetest, if he

  or she fails to prove. any one of the prongs, the ineffectiveness claim may be

  dismissed on that basis alone without the need to determine whether the other two

  prongs have been met. Commonwealth v. Basemore, 744 A.2d 717 (Pa. 2000).

  Similarly, because claims of ineffective assistance of counsel are not self-proving, a

  petitioner cannot prevail unless he or she properly develops the claim. Thus, when a

  petitioner fails to· properly plead all three prongs, or, having done so, to develop the

  claim, the petitioner is not entitled to relief and the court may find the claim waived for

  lack of development. See Commonwealth v. Steele, 961 A.2d 786 (Pa. 2008).

        Additionally,   trial counsel has broad discretion to determine the course of

 defense tactics and strategy. See Commonwealth v. Fowler, 670 A.2d 153 (Pa. Super.

  1996); Commonwealth v. Mizell, 425 A.2d 424 (Pa. 1981). Where matters of strategy

 and tactics

        are concerned, counsel's assistance is deemed constitutionally effective
        if he chose a particular course that had some reasonable basis designed
        to effectuate his client's interests. A finding that a chosen strategy lacked
        a reasonable basis is not warranted unless it can be concluded that an
        alternative not chosen offered a potential for success substantially
        greater than the course actually pursued. To demonstrate prejudice, the
        petitioner must show that there is a reasonable probability that, but for
        counsel's error or omission, the result of the proceeding would have
        been different.

. Commonwealth v. Colavita, 993 A.2d 874, 887 (Pa. 2010)(citations omitted). Further,

 "[t]he length of time dedicated to client consultation affords no basis for inferring the

 extent of trial preparation." Commonwealth v. Howard, 732 A.2d 1213, 1215 (Pa.

 Super. 1999)(citing Commonwealth v. Ellis, 700 A.2d 948, 960 (Pa. Super. 1997)).


                                              9
'!.I




       Vvhere a petitioner has not provided any evidence to support her allegation of

       inadequate preparation and it is shown that counsel met with the petitioner prior to

       trial, trial counsel cannot be deemed to be ineffective for lack of preparation without

       sufficient proof. Id. Thus, a petitioner is not entitled to relief simply because he or she

       did not like the strategy or because the strategy was unsuccessful. Commonwealth v.

       Davis, 554 A.2d 104, 111 (Pa. Super. 1989).

               In this case, Petitioner first claims that trial counsel was ineffective because

       actions he took prior to trial "irretrievably broke[ ] down the attorney/client relationship

       to the point that plea negotiations were extremely hampered and any communication

       of plea offers was met with distrust and ultimately were rejected due to that mistrust."

       Petitioner's   Brief   in   Support   of Amended    PCRA Petition,     p.1   (unnumbered).

       Specifically, Petitioner argues that because trial counsel asked the trial judge in this

       matter to segregate Petitioner from her co-defendant mother prior to trial, thus leading

       to Petitioner's placement in the RHU, the attorney/client relationship was so broken

       and rife with mistrust that it caused Petitioner to reject all plea offers. This argument is

       bootless.

              Initially, the foundation of Petitioner's claim seems to be that "[i]t should be

       axiomatic that if a defendant has the right to effective assistance of counsel during a

       plea process, then ineffective assistance· of counsel during plea negotiations that

       interrupt that pro~~ss should also form the basis for _PCRA relief." Petitioner's Brief if')

       Support of Amended PCRA Petition, p. 3 (unnumbered). However, the foundation

       crumbles because even after all this time, Petitioner has still not affirmatively stated

       that she would have taken a plea and, if so, what the terms she would have accepted



                                                   10
iJ
~·.




       would be. It seems to us that a petitioner asking for a finding of ineffective assistance

       of counsel based. on guilty plea negotiations must at least assert that she would have

       pied guilty. If she does not or cannot make that assertion and recite the terms of the

      plea she would have accepted, then she cannot prove the requisite prejudice.

              This analysis is consistent with the holdings and rationale of the United States

      Supreme Court in Missouri v. Frye, _        U.S. _, 132 S.Ct. 1399, ·182 L.Ed.2d 379

      (2012) and Lafler v. Cooper,_     U.S._,    132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), the

      seminal cases from the High Court that explain the duties owed by criminal defense

      attorneys during plea negotiations. Under Frye and Lafler, defense counsel have a

      duty to timely and meaningfully communicate to their clients formal offers from the

      prosecution to accept a plea on terms and conditions that may be favorable to the

      accused. If an attorney fails to fulfill this duty, he may be found to be ineffective.

      However, the High Court further held that in order to prove ineffectiveness, a

      defendant who rejects a plea offer must show that,

                     but for the ineffective advice of counsel there is a
                     reasonable probability that the plea offer would have been
                     presented to the court (i.e., that the defendant would have
                     accepted the plea and the prosecution would not have
                     withdrawn it in light of intervening circumstances), that the
                     court would have accepted its terms, and that the
                     conviction or sentence, or both, under the offer's terms
                     would have been less severe than under the judgment and
                     sentence that in fact were imposed.

      Lafle_r, 132 S. Ct. at 1385.

             If a petitioner who is not informed of a plea or who rejects a plea because of

      alleged ineffective assistance of counsel must show that she would have accepted a

      plea and recite its terms, it follows that a petitioner who is merely arguing that plea

      negotiations were hampered must, at minimum, make the same showing. This should

                                                  11
         be especially      true in this case since:      1) before trial counsel become involved,

         Petitioner first rejected one favorable plea and then accepted another favorable plea

         but later withdrew it; 2) after trial counsel became involved but before she was placed

         in restricted housing, Petitioner abjectly refused to accept the Commonwealth's            final

         offer, open until trial, despite extra opportunity to speak with her attorney, her mother,

         and her mother's attorney; and 3) the record amply demonstrates that Petitioner was

        informed     of the risks of going to trial, the benefits of the plea that was offered, the

        maximum sentences she faced, and the applicable guideline sentencing ranges.

                  Additionally,   Petitioner's   claim that the attorney/client   relationship   was so

        broken and rife with mistrust that it caused her to reject all plea offers is baseless for

        several reasons.

                  First, as noted, Petitioner rejected the first two offers negotiated on her behalf.

        Both offers were made and rejected long before trial counsel represented her.

                  Second, as also noted, the Commonwealth's third and final offer was made and

        rejected    by Petitioner before she was placed in restrictive housing and, under any

        reading of the record and Petitioner's         inconsistent testimony, before she was aware

        that trial counsel had asked to have she and her mother separated at the jail. In this

        regard, Petitioner testified that she first became aware that trial counsel had requested

        she be separated from her mother on the first day of trial.

                  Third,. it is clear that Petitioner rejected the Commonwealth's       final offer (and

        prior offers) for reasons that had nothing to do with alleged mistrust of trial counsel.

        The first offer was rejected because Petitioner did not want to testify against             her

        mother.     The third and final offer was rejected because there was an insurance
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           company, Met Life, included in one of the counts that Petitioner did not believe should

           have been included, a belief that also factored into her withdrawal of the plea she

           entered on the second offer. Indeed, Petitioner was adamant, at both the March 23,

           2012 hearing and the PCRA hearing, that she did not accept the final plea offer

           because she would not admit to any wrongdoing against Met Life. N.T., 3/23/2012, pp.

           7, 9, and 19; N.T., 7/15/2014, 63-64. Petitioner's rejection of the plea based on her

           belief that Met Life should not have been included was also discussed during her

           sentencing hearing.     N.T., 7/18/2012, pp. 2 and 36-42). Petitioner did not, at any time

           during either the March 23, 2012 hearing or the sentencing hearing mention rejecting

           any plea offer due to mistrust of trial counsel, and her testimony to that effect at the

           PCRA hearing was both inconsistent and incredible.

                  Fourth, Petitioner's claim that she had come to mistrust trial counsel during the

           plea and trial processes is belied by the record. On this issue, trial counsel credibly

           testified that he did not notice any change in their relationship after Petitioner was

           released from RHU. N.T., 7/15/2014, p. 27. In contrast, Petitioner's testimony on this

           issue was not credible. For example, Petitioner testified that she attempted to fire trial

           counsel on the first day of trial based on her discovering his involvement with her

           separation from her mother. Her recollection was that this was placed on the record in

           court. However, nothing in the record from the first day of trial shows any attempt by

           Petitioner to fire trial counsel. While it is true that, two trial days later, Petitionerwanted

           to fire trial counsel, the basis for Petitioner's assertion was that she disliked trial

           counsel's opening statement and his defense strategy, not the mistrust she is now

           asserting. N.T., 4/18/12, pp. 6-15. Specifically, Petitioner stated on the record that she
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              felt trial counsel's opening statements were "untruthful" because he made statements

              disparaging her mother. Id. at pp. 10-11. The alleged mistrust was simply not raised

              during trial.

                      Petitioner's related contention that trial counsel's request to separate her from

              her mother, which request led to her time in RHU, was a punitive response to her

              rejection of the final plea offer and of counsel's trial strategy is specious. Given the

              facts, including the history of this case, the crimes charged, Petitioner's age, the

              influence Petitioner's mother obviously had over her, the divergence of Petitioner's

              legal interests from that of her mother, Petitioner's rejection of plea offers that trial

              counsel believed Petitioner should have accepted, and the lengthy sentence that

              Petitioner faced if convicted, it was objectively and strategically reasonable for counsel

             to request that Petitioner be separated from her mother. The fact that Petitioner was

             subsequently placed in RHU was an unfortunate, but unsolicited and unforeseen,

             consequence.

                     Finally, after observing Petitioner testify, reviewing the record, and reading the

             submitted briefs, it is clear to this Court that Petitioner's allegation of ineffectiveness is

             based on "buyer's remorse," not mistrust of counsel. As noted, over the course of this

             case Petitioner 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

             received after going to trial and being convicted of twenty crimes. Even while asserting

             ineffectiveness, Petitioner acknowledges that trial counsel informed her of the risks of

             going to trial,   including the severe sentence she faced, and that he repeatedly

·,
             encouraged her to accept the final plea. N.T., 7/15/2014, pp. 70-71, 73-74. This is
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         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, interfering with his trial strategy, and going to trial, Petitioner "rolled the

        dice".     She lost. Regret for her decision does not allege, much less prove,

         ineffectiveness.

                 Petitioner's second claim is that trial counsel rendered ineffective assistance of

        counsel because he "didn't prepare [her] for testifying at her trial and didn't discuss

        trial strategy or possible avenues of defense with her prior to trial." Petitioner's Brief in

        Support of Amended PCRA Petition, p. 1 (unnumbered). This contention may be

        disposed of quickly.

                 Initially, the clause quoted in the preceding paragraph is the only portion of

        Petitioner's brief that mentions the second ineffectiveness claim. The issue is simply

        not argued in Petitioner's submissions. As a result, Petitioner has waived her second

        claim due to lack of development. Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa.

        Super. 2014) ("[A]s Appellant has cited no legal authorities nor developed any

        meaningful analysis, we find this issue waived for lack of development"). See also

        Commonwealth v. Steele, supra.

                 In the alternative, if Petitioner is deemed to have preserved her second

        ineffectiveness claim, the claim is substantively baseless. Again, the record amply

        demonstrates that trial counsel informed Petitioner of the final plea offer and the
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         severe sentence and penalties she faced if found guilty at trial. The record, including

         Petitioner's own statements made during trial in which she specifically challenged

         counsel's strategy, establishes without doubt that Petitioner was acutely aware of

         counsel's trial strategy.

                In addition, trial counsel credibly testified that he met with Petitioner on multiple

         occasions prior to trial to discuss the final plea, outline his trial strategy, explain why he

         believed Petitioner should testify, and prepare for trial. Trial preparation included

         preparing Petitioner for her testimony. N.T., 7/15/2014, pp. 18, 27-28, 30, and 37-38.

         In contrast, Petitioner's testimony on this issue was inconsistent and not credible.

                Further, as noted above and as trial counsel testified during the PCRA hearing,

         "the main problem we had was that she [Petitioner] disagreed with my theory of the

         case in terms of blaming her mother and she didn't want me to do that; so most of our

         arguments were over that." Id. at 27. Trial counsel testified that he "had a very good

         defense; but the defense was what she didn't like." Id. at 38. In fact, Petitioner tried to

         fire trial counsel after he gave his opening because Petitioner felt he was disparaging

         her mother. Id. at 37-38. Further, Petitioner prevented trial counsel from arguing his

         defense during closing argument by threatening to object during his argument. Id. at

         30. Nonetheless, trial counsel still managed to argue most of what he had already

         prepared months in advance, but was prevented from making what he considered a

         winninQargument by Petitioner. Id. at 30-31.

                Viewed in light of the applicable standards, trial counsel's strategy was

         objectively rational and reasonable. In fact, even the modified argument that trial




                                                       16
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     counsel was able and permitted by petitioner to make proved partially successful in

     that Petitioner was acquitted of ten charges.

            Under these circumstances, even if her second claim is not deemed waived,

     Petitioner is not entitled to relief simply because she did not like the strategy or that it

     was unsuccessful or only partially successful. Commonwealth v. Davis, 554 A.2d 104,

     111 (Pa. Super. 1989). In this regard, Petitioner has not suggested an alternative

     strategy which would have offered a potential success substantially greater than the

     course actually pursued. Colavita, supra, 993 A.2d at 887. Finally, since Petitioner has

     not provided any evidence to support her allegation of inadequate preparation and it is

     uncontested that trial counsel met with Petitioner prior to trial, trial counsel cannot be

     deemed to be ineffective for lack of preparation. See Commonwealth              v. Howard,

     supra; Commonwealth v. Ellis, 700 A.2d 948, 960 (Pa. Super. 1997).

            In sum, Petitioner's claims of ineffective assistance of counsel lack arguable

     merit, reasonable bases existed for counsel's actions, and Petitioner clearly failed to

     prove the requisite prejudice. Accordingly, we enter the following:




                                                 17
                   COURT OF COMMON PLEAS OF MONROE COUNTY
                          FORTY-THIRD JUDICIAL DISTRICT
                        COMMONWEAL TH OF PENNSYLVANIA



COMMONWEALTH          OF PENNSYLVANIA

              v.                                      .NO. 781 CR 2010

MELISSA M. BUCANO,

              Defendant



                                        ORDER

      AND NOW, this 29th day of June, 2015, it is ORDERED that the petition of

defendant   Melissa   M.   Bucano for relief under the Post-Conviction         Relief Act is
                                                                                 ,.-.....>

DENIED.                                                                  3:      =
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Cc:   Brian S. Gaglione, Esq
      Kelly M. Sekula, Deputy Attorney General




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