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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WAYNE D. IMBALZANO                         :
                                               :
                       Appellant               :   No. 1050 MDA 2019

               Appeal from the PCRA Order Entered June 7, 2019
              In the Court of Common Pleas of Lackawanna County
              Criminal Division at No(s): CP-35-CR-0000191-2015


BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, P.J.:                   FILED: MAY 18, 2020

        Wayne Imbalzano appeals from the order entered in the Lackawanna

County Court of Common Pleas, denying his petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§ 9541-9546. He alleges plea

counsel rendered ineffective assistance by instructing him to plead guilty to a

factually impossible crime. We affirm.

        Imbalzano entered a guilty plea to one count of statutory sexual assault,

victim under 16 and 11 years younger than defendant, and one count of

corruption of minors.1 The trial court sentenced him to 5-10 years’

incarceration on the statutory sexual assault charge and 12-24 months’

incarceration on the corruption of minors charge.



____________________________________________


1   See 18 Pa. C.S.A. §3122.1(b); 18 Pa. C.S.A §6301(a)(1).
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      Imbalzano immediately filed a post-sentence motion seeking withdrawal

of his guilty plea and reconsideration of his sentence. The trial court denied

the petition. Imbalzano filed a timely appeal. This Court affirmed Imbalzano’s

judgment of sentence, and the Pennsylvania Supreme Court denied his

petition for allowance of appeal.

      Imbalzano thereafter filed a pro se PCRA petition. The PCRA court

appointed counsel, who filed an amended petition alleging plea counsel’s

ineffectiveness. The court held an evidentiary hearing. The court then issued

an order denying relief, and Imbalzano filed a timely notice of appeal. This

matter is now properly before us.

      Imbalzano’s sole issue on appeal challenges the effectiveness of plea

counsel. See Appellant’s Brief, at 9. However, before we review the merits of

his argument, we must determine the timeliness of the PCRA petition.

      A PCRA petition is timely if it is filed within one year of the date the

petitioner’s judgment of sentence becomes final. See 42 Pa. C.S.A. §

9545(b)(1). “[A] judgment of sentence becomes final at the conclusion of

direct review, including discretionary review in the Supreme Court of the

United States and the Supreme Court of Pennsylvania, or at the expiration of

time for seeking the review.” Commonwealth v. Callahan, 101 A.3d 118,

122 (Pa. Super. 2014).

      Here, a previous panel of this Court affirmed Imbalzano’s judgment of

sentence. Our Supreme Court denied his petition for allowance of appeal on


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October 10, 2017. His judgment of sentence thus became final on January 8,

2018, 90 days after our Supreme Court denied his petition for permission to

appeal. See 42 Pa. C.S.A. § 9545(b)(3); see also Commonwealth v.

Feliciano, 69 A.3d 1270, 1275 (Pa. Super. 2013). Imbalzano’s petition, filed

on July 18, 2018, is therefore timely.

      “Our standard of review for issues arising from the denial of PCRA relief

is well-settled. We must determine whether the PCRA court’s ruling is

supported by the record and free of legal error.” Commonwealth v. Presley,

193 A.3d 436, 442 (Pa. Super. 2018) (citation omitted). In doing so, we read

the record in the light most favorable to the prevailing party. See

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012). If this

review reveals support for the PCRA court’s credibility determinations and

other factual findings, we may not disturb them. See Commonwealth v.

Henkel, 90 A.3d 16, 20 (Pa. Super. 2014). We, however, afford no deference

to the PCRA court’s legal conclusions. See id.

      Imbalzano asserts counsel was ineffective for advising him to plead

guilty to a factually impossible crime. See Appellant’s Brief, at 9. On the advice

of counsel, Imbalzano pleaded guilty to one count of statutory sexual assault,

victim under 16 years old and 11 or more years younger than defendant. See

id. However, Imbalzano is approximately 10 years and 10 months older than

the victim, and not 11 years older. See id. As such, Imbalzano argues

counsel’s failure to inform him of this factual discrepancy was ineffective


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assistance resulting in prejudice to his case. See id. Therefore, he claims he

is entitled to a new trial. See id., at 13. We disagree.

      Claims of ineffective assistance of counsel during the plea-bargaining

process are cognizable under the PCRA. See Commonwealth v. Kelley, 136

A.3d 1007, 1012 (Pa. Super. 2016). However, such claims entitle a petitioner

to relief only if the ineffectiveness caused the petitioner to enter an involuntary

or unknowing plea. See id., at 1013. If the petitioner enters a counseled plea,

the voluntariness of the plea is premised on whether counsel provided advice

within the range of competence expected of criminal defense attorneys. See

id.

      Because we presume counsel’s effectiveness, Imbalzano bears the

burden of proving otherwise. See Commonwealth v. Brown, 161 A.3d 960,

965 (Pa. Super. 2017). To establish ineffectiveness of counsel, Imbalzano

must plead and prove: his underlying legal claim has arguable merit; counsel’s

actions lacked any reasonable basis; and counsel’s actions prejudiced him.

See Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011). Failure to

satisfy any prong of the ineffectiveness test requires dismissal of the claim.

See Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa. Super. 2004).

      “Arguable merit exists when the factual statements are accurate and

could establish cause for relief. Whether the facts rise to the level of arguable

merit is a legal determination.” Commonwealth v. Barnett, 121 A.3d 534,

540 (Pa. Super. 2015) (citations and internal quotation marks omitted). He


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must also establish that counsel’s chosen strategy lacked a reasonable basis

by “prov[ing] that an alternative not chosen offered a potential for success

substantially greater than the course actually pursued.” Commonwealth v.

Williams, 899 A.2d 1060, 1064 (Pa. 2006) (citation omitted). Finally,

Imbalzano must show that he suffered prejudice, “that is, that counsel’s

ineffectiveness was of such magnitude that it could have reasonably had an

adverse effect on the outcome of the proceedings.” Commonwealth v.

Spotz, 84 A.3d 294, 315 (Pa. 2014) (citation and quotation marks omitted).

      Here, based on our review of the record, we conclude that it was

factually impossible for Imbalzano to plead guilty to the offense charged

because he is only 10 years and 10 months older than the victim. Therefore,

he has established that his ineffectiveness claim has arguable merit.

      However, Imbalzano fails to show that plea counsel lacked a reasonable

basis for advising him to plead guilty to a factually impossible crime.

      At the PCRA hearing, plea counsel testified about Imbalzano’s plea

agreement and the reasons as to why he advised Imbalzano to plead guilty to

a factually impossible crime. Counsel explained that, because Imbalzano was

a registered sex offender, he faced a mandatory minimum sentence of 25

years. See PCRA Hearing, 02/13/19, at 82. In addition, Imbalzano was

arrested while on probation in an unrelated case and was subject to a

probation violation. See id., at 75-76. Thus, counsel sought to resolve the




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case through a plea agreement that would shield Imbalzano from these

aggravating factors at sentencing.

      Counsel negotiated a plea agreement with the Commonwealth at

Imbalzano’s bail hearing. See id., at 76. The agreement provided that “in

exchange for [Imbalzano] . . . [pleading guilty to one count of first-degree

felony statutory sexual assault and one count of corruption of minors] . . .

[the Commonwealth] would withdraw the [probation] violation . . . [and]

would not file any charges . . . relat[ed] to any alleged Megan’s Law violation.”

Id., at 84-85. However, a major issue existed with the proposed agreement.

Counsel testified that he informed the Commonwealth that Imbalzano’s age

in relation to the victim’s age did not support the statutory sexual assault

charge. See id., at 85. In any event, the parties agreed to a stipulation

regarding the statutory sexual assault charge. See id.

      When discussing the plea agreement with Imbalzano, counsel explained

that the underlying facts of the case did not satisfy the elements of first-

degree felony statutory sexual assault. See id., at 85-86. He also indicated to

Imbalzano that if he did not accept the terms of the plea agreement the

Commonwealth would file additional charges, namely the Megan’s Law

violation, exposing him to a mandatory minimum sentence of 25 years. See

id., at 86. As a result, Imbalzano accepted the plea agreement and pleaded

guilty to statutory sexual assault - despite the factual impossibility - and

corruption of minors. See id., at 87.


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      Based on these circumstances, we cannot conclude the PCRA court erred

in finding that counsel’s actions had a reasonable basis. The plea agreement

counsel negotiated with the Commonwealth minimized Imbalzano’s exposure

to aggravating factors at sentencing. Further, had Imbalzano rejected the plea

agreement and proceeded to trial, the Commonwealth would have filed

additional charges and would have sought a 25-year mandatory minimum

sentence for the Megan’s Law violation. See Commonwealth v. Williams,

732 A.2d 1167, 1189 (Pa. 1999) (“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.”). Therefore, the record supports a finding

that counsel had a reasonable basis for advising Imbalzano to plead guilty to

a factually impossible crime in order to secure a more lenient sentence.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/18/2020




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