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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
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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2013) (unpublished memorandum).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 In an unpublished memorandum, this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).
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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. 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.
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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, 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.
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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
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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
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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
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Cc: Brian S. Gaglione, Esq
Kelly M. Sekula, Deputy Attorney General
18
Com. v. Bucano, M.
Combined Opinion