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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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