J-S10009-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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). J-S10009-20
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.
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J-S10009-20
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). J-S10009-20
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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