J-S52036-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
ANTHONY JOSEPH RACO
Appellant No. 286 WDA 2015
Appeal from the PCRA Order of January 28, 2015 In the Court of Common Pleas of Somerset County Criminal Division at No.: CP-56-CR-0000209-2011
BEFORE: SHOGAN, J., OLSON, J., and WECHT, J.
MEMORANDUM BY WECHT, J.: FILED NOVEMBER 4, 2015
Anthony Raco appeals the January 28, 2015 order dismissing his
petition for relief pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-46. The PCRA court has comprehensively and correctly
ruled upon Raco’s claims in its opinion in support of its order dismissing
Raco’s PCRA petition and its opinion pursuant to Pa.R.A.P. 1925(a). We
adopt the PCRA court’s opinions as our own, and we affirm the order.
In this case, Raco was charged with involuntary deviate sexual
intercourse by forcible compulsion, sexual assault, unlawful restraint, and
indecent assault by forcible compulsion.1 Raco initially hired Arthur T.
McQuillan, Esq. to represent him at trial. However, Raco eventually
____________________________________________
1 18 Pa.C.S. §§ 3123(a)(1), 3124.1, 2902(a)(2), and 3126(a)(2). J-S52036-15
disengaged Attorney McQuillan, and hired Sally Frick, Esq., and George Bills,
Esq., to represent him. With Attorneys Frick and Bills, Raco waived his right
to a jury trial, and instead elected to proceed with a bench trial.
At the conclusion of the non-jury trial, the trial court convicted Raco of
sexual assault, and acquitted him of the remaining charges.2 On April 30,
2014, the trial court sentenced Raco to twenty-four to forty-eight months’
incarceration. Pursuant to the Sex Offender Registration and Notification Act
(“SORNA”), 42 Pa.C.S. §§ 9799.10 et seq., Raco, having been convicted of
sexual assault, was designated to comply with the requirements of SORNA
for his lifetime. Raco filed a post-sentence motion, in which he alleged that
SORNA was unconstitutional. The trial court denied the motion.
Raco did not file an appeal. Instead, he proceeded directly to the
collateral stage of his case by filing a PCRA petition on October 23, 2014.
Raco alleged that prior counsel were ineffective for failing to communicate to
him on the day of trial that the assistant district attorney had made a
standing offer that would permit Raco to plead guilty to indecent assault,
which would have resulted in a lesser sentence and a shorter reporting
period under SORNA. Raco alleged that trial counsel never communicated
2 The facts presented at the non-jury trial in support of the conviction are immaterial to our disposition of this appeal. Thus, we will not recite them here.
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the standing offer to him, and that he would have accepted it had they done
so.
The PCRA court held multiple hearings on the petition. The court has
summarized trial counsel’s3 testimony as follows:
At the evidentiary hearing [at which counsel testified], trial counsel acknowledged that while the assistant district attorney extended a plea offer immediately before trial, the offer was not communicated or discussed with [Raco], and trial counsel rejected the offer. However, trial counsel testified that throughout their representation of [Raco], they had discussed many possible resolutions with [Raco]. These resolutions included discussions related to the possibility of Accelerated Rehabilitative Disposition, which was objected to by the victim, and a plea offer of sexual assault, which was discussed with and ultimately rejected by [Raco]. Trial counsel testified that, at some point while representing [Raco], there were discussions relating to a plea offer of indecent assault. However, this plea offer carried with it mandatory reporting requirements, “which was the problem.” More specifically, trial counsel noted that, based on discussion with [Raco], it appeared that [Raco] wanted to avoid two things: SORNA reporting requirements and incarceration. After trial counsels’ “extensive discussions” with [Raco] about the possibility of pleading guilty to indecent assault and the potential ramifications of such a guilty plea, [Raco] rejected the plea offer due to the fact that indecent assault carried mandatory reporting requirements under SORNA.
Despite [Raco’s] prior rejection of the plea offer, the assistant district attorney advised trial counsel, immediately before trial, that a plea offer of indecent assault remained on the table. Without communicating to [Raco] that the plea offer was still available, trial counsel rejected the offer because “we were ready to go to trial. As far as [trial counsel] was concerned, that ____________________________________________
3 Both Attorney Frick and Attorney Bills testified at the PCRA hearing. The PCRA court does not distinguish between the two in summarizing their testimony. However, this minor lack of clarity does not disrupt our analysis or disposition of this case.
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issue had been decided.” Trial counsel testified that they “had talked about so many offers at so many times – yeah, we were just ready to go [to trial], and that’s what [trial counsel] thought everybody wanted to do.” Moreover, on the day of trial, trial counsel believed the issue of a plea deal was “a moot point” because [Raco] had previously rejected the offer of indecent assault with the attached mandatory reporting requirements.
PCRA Court Opinion (“P.C.O.”), 1/29/2015, at 2-3 (capitalization modified
for clarity; references to notes of testimony omitted).
The PCRA court specifically credited trial counsel’s testimony. Id. at 6.
Relying upon that testimony, the court dismissed Raco’s PCRA petition. On
February 17, 2015, Raco filed a notice of appeal. In response, the PCRA
court directed Raco to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). On March 6, 2015, Raco timely
complied. On March 25, 2015, the PCRA court issued an opinion pursuant to
Pa.R.A.P. 1925(a), in which the court adopted the rationale that it set forth
in its January 29, 2015 opinion in support of dismissing Raco’s PCRA petition
as dispositive of all but one of Raco’s issues. The PCRA court then
addressed the final issue raised by Raco that had not been addressed in its
original opinion.
Raco raises five issues for our review:
A. Whether, under both Pennsylvania and federal law, former trial counsel were constitutionally ineffective, thus, requiring vacation of conviction and grant of new trial, where at no relevant time did former trial counsel advise [Raco] of the details, or even the existence, of a formal plea offer that was communicated by the Commonwealth to former trial counsel and held open until the day of trial?
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B. Whether, under both Pennsylvania and federal law, the [PCRA court] accorded undue weight to the equivocal testimony of former trial counsel to determine that former trial counsel did, in fact, advise [Raco] of the details of a formal plea offer that was communicated by the Commonwealth to former trial counsel and held open until the day of trial where the formal record is devoid of any evidence establishing specifically when former trial counsel allegedly discussed the plea offer with [Raco], where it was discussed, how it was discussed, what was discussed, and when, in fact, [Raco] presented evidence to the contrary, including, but not limited to, the testimony of three witnesses, including [Raco]?
C. Whether, under both Pennsylvania and federal law, the [PCRA court] committed an error of law in determining that former trial counsel was not constitutionally ineffective for failing to advise [Raco] of a formal plea offer that was communicated by the Commonwealth to former trial counsel and held open until the day of trial where the formal record is devoid of any evidence establishing specifically when former trial counsel allegedly discussed the plea offer with [Raco], where it was discussed, how it was discussed, and what was discussed?
D. Assuming arguendo that former trial counsel advised [Raco] of the details of a formal plea offer extended by the Commonwealth prior to trial and [Raco] rejected the same, whether, under both Pennsylvania and federal law, former trial counsel was, nonetheless, constitutionally ineffective where the Commonwealth communicated said offer to former trial counsel on the day of trial and it is wholly undisputed that former trial counsel failed to communicate the re- extension of that offer to [Raco]?
E. Whether, under both Pennsylvania and federal law, the [PCRA court] improperly construed and weighed the evidence to find that trial counsels’ ineffectiveness did not prejudice [Raco] because [Raco] allegedly failed to show that he would, in fact, have accepted the Commonwealth’s formal plea offer had said offer been communicated to [Raco] by the former trial counsel?
Brief for Raco at 5-7.
We begin with the legal principles that govern this case.
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This Court analyzes PCRA appeals “in the light most favorable to the prevailing party at the PCRA level.” Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012). Our “review is limited to the findings of the PCRA court and the evidence of record” and we do not “disturb a PCRA court’s ruling if it is supported by evidence of record and is free of legal error.” Id. Similarly, “[w]e grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions.” Id. (citations omitted). “[W]here the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary.” Finally, we “may affirm a PCRA court’s decision on any grounds if the record supports it.” Id.
Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014).
Pennsylvania has recast the two-factor inquiry regarding the
effectiveness of counsel set forth by the United States Supreme Court in
Strickland v. Washington, 466 U.S. 668 (1984), as the following three-
factor inquiry:
[I]n order to obtain relief based on [an ineffective assistance of counsel] claim, a petitioner must establish: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel’s actions or failure to act; and (3) petitioner suffered prejudice as a result of counsel’s error such that there is a reasonable probability that the result of the proceeding would have been different absent such error.
Commonwealth v. Reed, 971 A.2d 1216, 1221 (Pa. 2005) (citing
Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987)). Trial counsel is
presumed to be effective, and a PCRA petitioner bears the burden of
pleading and proving each of the three factors by a preponderance of the
evidence. Commonwealth v. Rathfon, 899 A.2d 365, 369
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(Pa. Super. 2006); see Commonwealth v. Meadows, 787 A.2d 312, 319-
20 (Pa. 2001).
The requirement that counsel be effective extends to the plea
bargaining process. Accordingly, trial counsel has an affirmative duty to
communicate all plea offers to his or her client. See Missouri v. Frye, ___
U.S. ___, 132 S.Ct. 1399, 1408 (2012). A PCRA petitioner who claims that
counsel was ineffective for failing to communicate an offer still must
demonstrate that he or she was prejudiced by counsel’s failure to
communicate a plea offer. Id. at 1409-10.
Raco’s issues can be considered collectively. In general terms, Raco is
challenging the PCRA court’s credibility determinations and the legal
conclusions drawn therefrom. The PCRA court has thoroughly addressed
these issues in its two opinions. We have reviewed the certified record, the
briefs of the parties, and the applicable law, and conclude that the PCRA
court’s determinations are supported by the record and its legal conclusions
are correct. We adopt the PCRA court’s comprehensive analysis disposing of
Raco’s issues in both its January 29, 2015 opinion and its March 25, 2015
opinion. Copies of those opinions are attached hereto for convenience.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 11/4/2015
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) IN THE COURT OF COMMON PLEAS ) OF SOMERSET COUNTY, ) PENNSYLVANIA v. ) ) ) NO. 209 CRlMINAL 2011 ANTHONY JOSEPH RACO, ) ) ) PETITION FOR POST-CONVICTION Petitioner/Defendant. ) COLLATERAL RELIEF
For the Commonwealth: Lisa Lazzari-Strasiser, Esq.; District Attorney . For Defendant: Daniel W. Rullo, Esq,
Hearing: December 3, 2014
MEMORANDUM
This matter is before us on Defendant's Petition for Post-Conviction Collateral Relief
(hereinafter, the "Petition") pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. § 9541, et
seq. (hereinafter, the "PCRA"). On January 24, 2014, following a non-jury trial, Defendant
was convicted of Sexual Assault, 18 Pa.C.S.A. § 3124.1, a felony of the second degree. On
April 30, 2014, Defendant was sentenced to incarceration in the Somerset County Jail for not
less than twenty-four (24) months and not more than forty-eight (48) months. Defendant was
further sentenced to abide by the regulations and registration verification requirements of the
Sex Offender Registration and Notification Act (hereinafter, "SORNA"). In this case, those
requirements amounted to a lifetime registration. On May 9, 2014, Defendant filed a Post-
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Sentence Motion in which he challenged the constitutionality of SORNA. By Order of Court
dated September 8; 2014; Defendant's Post-Sentence Motion was denied. Defendant's timely
Petition followed.
In the Petition, Defendant asserts that Trial Counsel's" failure to inform him of a
standing plea offer denied him the effective assistance of counsel. Specifically, Defendant
alleges that a plea offer was communicated to Trial Counsel by the Assistant District Attorney
"long before [Defendant's] trial," and Defendant was never advised of said offer. (Petition at~
9). The plea offer extended by the Assistant District Attorney is alleged to have been a formal
offer, and consisted of a guilty plea to Indecent Assault, 18 Pa.C.S.A. § 3126, a misdemeanor
of the second degree. Defendant further alleges that the formal standing plea offer "remained
on the table" and the Assistant District Attorney "reminded [T]rial [C]ounsel of the standing
[plea] offer up until the time of trial." Id. at ,i 14. Defendant contends that; despite reminders
from the Assistant District Attorney, Trial Counsel never advised Defendant of the standing
plea offer and Trial Counsel rejected said offer without consulting Defendant. Id.
On December 3, 2014, we held an evidentiary hearing regarding the Petition. At the
evidentiary hearing; Trial Counsel acknowledged that while the Assistant District Attorney
extended a plea offer immediately before trial, the offer was not communicated to or discussed
with Defendant, and Trial Counsel rejected the offer. (Evidentiary Hearing Transcript at pages
5-6, lines 15-25, 1-13, December 16, 2014); Id. at 23, lines 7-20. However, Trial Counsel
testified that throughout their representation of Defendant, they had discussed many possible
resolutions with Defendant. Id. at 8, lines 2-8. These resolutions included discussions related
to the possibility of Accelerated Rehabilitative Disposition, which was objected to by the
victim, and a plea offer of Sexual Assault, which was discussed with and ultimately rejected by 3 Here, Trial Counsel includes both Sally A. Frick, Esq. and George W. Bills, Jr., Esq.
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Defendant. Trial Counsel testified that, at some point while representing Defendant, there were
discussions relating to a plea offer of Indecent Assault. However, this plea offer carried with it
mandatory reporting requirements, "which was the problem." Id. at 12, lines 19-22. More
specifically; Trial Counsel noted that; based on discussions with Defendant; it appeared that
Defendant wanted to avoid two things: SORNA reporting requirements and incarceration. Id.
at 13, lines 7-14. After Trial Counsel's "extensive discussionjs]" with Defendant about the
possibility of pleading guilty to Indecent Assault and the potential ramifications stemming from
such a guilty plea; Defendant rejected the plea offer due to the fact that Indecent Assault carried
mandatory reporting requirements under SORNA. Id. at 25, lines 9-10.
Despite Defendant's prior rejection of the plea offer; the Assistant District Attorney
advised Trial Counsel, immediately before trial, that a plea offer of Indecent Assault remained
on the table. Without communicating to Defendant that the plea offer was still available, Trial
Counsel rejected the offer because "we were ready to go to trial, As far as [Trial Counsel] was
concerned, that issue had been decided." Id. at 16, lines 15-16. Trial Counsel testified that
they "had talked about so many offers at so many times -- yeah, we were just ready to go [to
trial], and that's what [Trial Counsel] thought everybody wanted to do." Id. at 16; lines 19-21.
Moreover, on the day of trial, Trial Counsel believed the issue of a plea deal was a "moot
point" because Defendant had previously rejected the offer of Indecent Assault with the
attached mandatory reporting requirements. Id. at 29-30, lines 21-25, 1-2.
To be eligible for relief under the PCRA, Defendant must plead and prove by a
preponderance of the evidence that his conviction resulted from the "[i]neffective assistance of
counsel which; in the circumstances of [this] particular case; so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could have taken place." Circulated 10/07/2015 11:32 AM
42 Pa.C.S.A. § 9543(a)(2)(ii). In evaluating a claim of ineffectiveness, counsel is presumed to
be effective, and it is Defendant's burden to show otherwise. Commonwealth v. Howard, 749
A.2d 941, 949 (Pa. Super. 2000); Commonwealth v. Witherspoon, 392 A.2d 1313, 1315 (Pa.
1978); see Strickland v, Washington; 466 U.S. 668, 689 (1984) (reasoning that the court's
review of counsel's performance must be "highly deferential[,] ... indulg[ing] a strong
presumption that counsel's conduct falls within the wide range of reasonable professional
assistance.").
It is well settled that the Sixth Amendment to the United States Constitution and
Article I, Section 9 of the Pennsylvania Constitution guarantee that the accused shall enjoy the
right to effective assistance of counsel at all critical stages of a criminal proceeding.
Commonwealth v. Grant, 992 A.2d 152, 156 (Pa. Super. 2010) (citing Strickland, 466 U.S. at
684-86; Mempa v. Rhay, 389 U.S. 128, 134 (1967)); see U.S. Const. amend. VI ("In all
criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel
for his defence."), The right to effective assistance of counsel "is mandated by the Sixth
Amendment because lawyers 'are the means through which the other rights of the person on
trial are secured,' and through which the prosecution's case is subjected to 'meaningful
adversarial testing.'?' Grant, 992 A.2d at 156 (citing United States v. Cronic, 466 U.S. 648,
653-56 (1984)); see Commonwealth v, Pierce, 527 A.2d 973, 981 (Pa. 1987) (citing Strickland,
466 U.S. at 684-85) ("The Sixth Amendment right to counsel exists in order to protect the
fundamental right to a fair trial."). Moreover; plea negotiations are a critical stage of a criminal
proceeding where "criminal defendants require effective counsel." Missouri v. Frye, _ U.S.
_, _; 132 S.Ct 1399; 1407-08 (2012); accord Lafler v. Cooper, _ U.S. _j _; 132
S.Ct 1376 (2012); see Padilla v. Kentucky, 599 U.S. 356j 364 (2010) (citing McMann v.
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Richardson, 397 U.S. 759, 771 (1970)) ("Before deciding whether to plead guilty, a defendant
is entitled to 'the effective assistance of competent counsel.?'). During plea negotiations,
anything less than effective counsel "might deny a defendant 'effective representation by
counsel at the only stage when legal aid and advice would help him.?' Id. at 1409 (quoting
Massiah v. United States, 377 U.S. 201, 204 (1964)) (intemal quotations omitted). Thus, "as a
general rule, defense counsel has the duty to communicate formal offers from the prosecution
to accept a plea on terms and conditions that may be favorable to the accused." Id. at 1408.
For reversal of a conviction based upon claims that counsel's assistance was ineffective;
a defendant must show that: (1) "counsel's performance was deficient" and (2) "the deficient
performance prejudiced the defense." Strickland, 466 U.S. at 687. Prejudice is shown where
"there is a reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 694. In Pennsylvania; the PCRA essentially
adopts the Strickland standard, under which our courts have created a three-pronged
performance and prejudice test. Specifically; Pennsylvania law requires a petitioner to show
that: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's
action or inaction; and (3) counsel's error caused the prejudice such that there is a reasonable
probability that the result of the proceeding would have been different absent such error,
Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987); Commonwealth v, Washington, 927 A.2d
586 (Pa. 2007). If a defendant fails to meet any prong in the Pierce test, then his or her claim
of ineffectivenessmay be denied. Washington, 927 A,2d at 594.
Here, the testimony presented by Trial Counsel at the evidentiary hearing establishes
that Trial Counsel did in fact inform Defendant of the Commonwealth's plea offer at some
point in the period of time leading up to Defendant's trial. Trial Counsel testified that they had Circulated 10/07/2015 11:32 AM
"a number of discussions with the [Assistant District Attorney]" and Defendant about "possible
resolutions" to this case. (Evidentiary Hearing Transcript at page 8, lines 1-8, December 16,
2014). At one point, Trial Counsel discussed with Defendant the possibility of Accelerated
Rehabilitative Disposition. At yet another time, the Commonwealth extended a written plea
offer of Sexual Assault, a felony of the second degree, and Defendant rejected this offer on the
advice of Trial Counsel. Finally, and most importantly, there existed a plea offer of Indecent
Assault, a misdemeanor of the second degree. Trial Counsel testified that the plea offer of
Indecent Assault was communicated to and discussed extensively with Defendant, including
discussions relating to the ramifications of pleading guilty to Indecent Assault. Id. at 25, lines
9-1 O. However, the plea offer of Indecent Assault was not acceptable to Defendant because it
carried with it mandatory reporting requirements, and Defendant ultimately rejected the
Commonwealth's offer. Id. at 12, lines 19-25.
After thoroughly evaluating their testimony, we find Trial Counsel to be most credible.
Indeed; we must not ignore the fact that Trial Counsel are officers of the legal system, and have
an ethical and professional obligation to remain candid toward this Court. Pa. R.P.C. 3.3; see
id., cmt. 2 (explaining that a "lawyer must not allow the tribunal to be misled by false
statements of . . . fact or evidence that the lawyer knows to be false."). Furthermore, we find
Trial Counsel's credibility to be bolstered by their truthful and sincere admission that they did
not communicate to or advise Defendant of the plea offer immediately before trial. After
consideration of all circumstances surrounding this case, we accept Trial Counsel's recollection
of the facts. As such, we must decide if Trial Counsel's conduct fell below professional
standards.
There is no doubt that "as a general rule, defense counsel has the duty to communicate
f, Circulated 10/07/2015 11:32 AM
formal offers from the prosecution to accept a plea on terms and conditions that may be
favorable to the accused," Frye; 132 S.Ct. at 1408. The United States Supreme Court;
however, has indicated that there are perhaps exceptions to that general rule, although they
have yet to explore what those exceptions may be. Id. However; in Groves v, United States;
755 F.3d 588 (7th Cir. 2014), while deciding whether counsel was constitutionally ineffective
for not discussing a plea offer with a defendant; the United States Court of Appeals for the
Seventh Circuit expressed one such exception. Groves, 755 F.3d at 591. In that case, after the
defendant's first attorney withdrew from the case; the government extended a plea offer to the
defendant. After discussing the offer with his second attorney, the defendant rejected the
government's proposed plea agreement. Id. at 590, Subsequently, the defendant's second
attorney filed a motion to withdraw, which was granted. The United States District Court then
appointed a third attorney to represent the defendant Throughout his representation of the
defendant, the third attorney was unaware of the government's proposed plea offer. As such,
the third attorney did not have any conversations with the defendant about the government's
offer, and instead proceeded to trial. Id. at 591. After bis conviction, the defendant filed a
motion claiming that the third attorney's "performance was objectively unreasonable because
[the attorney] failed to discuss the government's ... plea offer with him." Id. The District
Court entered judgment denying the defendant's motion, and the defendant appealed.
On Appeal, the Seventh Circuit, relying on Lafler and Flye, acknowledged that
'" lawyers must tell their clients about offers of plea bargains.?' Id. at 592 (quoting Estremera
v. United States, 724 F.3d 773, 778 (7th Cir. 2013)). However, the Court found that the
defendant's first attorney "did just that and [the defendant] rejected the offer." Id. The Court
reasoned that "Lafler and Frye do not require subsequent counsel to press a plea offer on a
7 Circulated 10/07/2015 11:32 AM
defendant who has already rejected any such offer - nor is it per se prejudice for failing to do
so." Id. Thus, the Court held that the third attorney's "failure to discuss the ... plea offer after
[the defendant] had rejected it earlier in his criminal proceedings . , . was not ineffective
assistance of counsel." Id.
Although we are not bound by the Seventh Circuit decision in Groves, we find this
decision to be most persuasive. In the case sub judice, the Commonwealth presented a plea
offer to Defendant, and Defendant and Trial Counsel had "extensive discussion]s]" about the
plea offer and its potential ramifications, including the attached reporting requirements
mandated under SORNA. (Evidentiary Hearing Transcript at page 25, lines 9-10, December
16, 2014), Based on his discussions with Trial Counsel, Defendant rejected the
Commonwealth's offer. Here, much like in Groves, Trial Counsel was not required to press
onto Defendant the very plea offer which Defendant had previously rejected earlier in the legal
process, and Trial Counsel was not ineffective for failing to do so. It is clear that Trial Counsel
fulfilled the ethical and professional obligations that were owed to Defendant regarding the
Commonwealth's plea offer.
Furthermore, to the extent Trial Counsel's performance could be construed as
ineffective, we find that Defendant suffered no prejudice. "To show prejudice from ineffective
assistance of counsel where a plea offer has lapsed or been rejected because of counsel's
deficient performance, [a] defendant[] must demonstrate a reasonable probability they would
have accepted the earlier plea offer had they been afforded effective assistance of counsel."
Frye, 132 S.Ct. at 1409. Furthermore, a defendant must "demonstrate a reasonable probability
the plea would have been entered without the prosecution canceling it or the trial court refusing Circulated 10/07/2015 11:32 AM
to accept it/'4 Id. To establish prejudice; "it is necessary to show a reasonable probability that
the end result of the criminal process would have been more favorable by reason of a plea to a
lesser charge or a sentence of less prison time." Id. Defendant alleges that he was prejudiced
by having to stand trial and because of that he is now suffering penalties that are more severe
than those that he would have received by accepting the Commonwealth's plea offer. Indeed, a
defendant "who goes to trial instead of taking a more favorable plea may be prejudiced from
either a conviction on more serious counts or the imposition of a more severe sentence."
Lafler, 132 S.Ct. at 1386. However, for prejudice to exist Defendant has the burden to prove
that there is a reasonable probability that he would have accepted the Commonwealth's
standing plea offer if Trial Counsel had communicated the plea offer to Defendant immediately
before the start of trial.
We find Defendant has failed to satisfy his burden, as we are not convinced that there
exists a reasonable probability that he would have accepted the plea offer immediately before
trial. In reaching this determination, we find that Defendant's testimony is not particularly
credible,5 as most of his claims were directly refuted by the credible testimony of Trial
Counsel. Furthermore, the testimony revealed that Defendant's aim was to avoid incarceration
and reporting requirements, and the plea offer would have, at the very least, carried with it
mandatory reporting requirements. Additionally; we find it noteworthy that Defendant had
4 We find there is a reasonable probability that the prosecution would not have cancelled the plea offer. Indeed, the plea was re-offered mere minutes before trial; thus, it seems unlikely that the Assistant District Attorney would have cancelled the plea offer immediately after communicating said offer. Moreover, we find it unlikely that the judge would not have accepted the plea offer. See Frye, 132 S.Ct. at 1410 (reasoning that "[i]t can be assumed that ... prosecutors and judges are familiar with the boundaries of acceptable plea bargains and sentences[;]" therefore "it should not be difficult to make an objective assessment as to whether or not a particular fact or intervening circumstance would suffice, in the normal course, to cause prosecutorial withdrawal or judicial uonapproval of a plea bargain."). Here, there is nothing in the record that would lead us to find that the plea offer would have been withdrawn by the prosecutor or would not have been approved by a judge of this County. 5 In reaching this credibility determination, we considered the conflicting testimony of Trial Counsel and our observations of Defendant's tone, mannerisms, and behavior while testifying at the evidentiary hearing.
Q Circulated 10/07/2015 11:32 AM
previously rejected the very plea offer that is the basis of his Petition.
Finally; we must note that Defendant never testified that he would have accepted the
Commonwealth's standing plea offer immediately before trial. During the evidentiary hearing,
Defendant's attorney asked: "Would you have accepted that offer -- today, knowing the
situation, would you have accepted that offer in order to avoid incarceration and avoid the
lifetime reporting responsibility?" (Evidentiary Hearing Transcript at page 5; lines 5-9;
December 8, 2014) (emphasis added). Although Defendant responded in the affirmative, we do
not believe that this hindsight question is the correct inquiry. Rather, to satisfy his burden;
Defendant would need to establish that, regardless of his conviction and sentence, he would
have accepted the plea offer if it had been communicated by Trial Counsel. There is no doubt
that, now knowing the ultimate outcome of his trial, Defendant would have taken the plea offer
to avoid both a lengthy incarceration sentence and lifetime reporting requirements. Yet what
Defendant needed to establish is that there is a reasonable probability that he would have
accepted the plea offer in order to avoid trial and the potential ramifications stemming from
trial. He has failed to do so. Rather, what the totality of evidence establishes is mere sentence
dissatisfaction, not prejudice.
Accordingly; we enter the following order: Circulated 10/07/2015 11:32 AM
COMMONWEALTH ) IN THE COURT OF COMMON PLEAS ) OF SOMERSET COUNTY, ) PENNSYLVANIA v. ) ) ) NO. 209 CRIMINAL2011 ANTHONY JOSEPH RACO, ) ) ) PETITION FOR POST-CONVICTION Petitioner/Defendant. ) COLLATERAL RELIEF
I ORDER
AND NOW; this z,/JI" day of January 2015; upon review of Defendant's Petition for
Post-Conviction Collateral Relief, in accordance with the foregoing Memorandum of Law, it is
ORDERED that said Petition is DENIED.
11 • I Circulated 10/07/2015 11:32 AM
COMMONWEALTH ) IN THE COURT OF COMMON PLEAS ) OF SOMERSET COUNTY, v. ) PENNSYLVANIA ) ANTHONY JOSEPH RACO, ) ) Defendant. ) NO. 209 CRIMINAL 2011
STATEMENT PURSUANT TO Pa.R.A.P. 1925(a)
TWs statement is issued in compliance with the directive of Pennsylvania Rule of
Appellate Procedure 1925(a). Defendant having complied with our directive to file a concise
statement of matters complained of on appeal, the following is our reply.
On January 24, 2014, following a non-jury trial, Defendant was convicted of Sexual
Assault, 18 Pa.C.S.A. § 3124.1, a felony of the second degree. On April 30, 2014, Defendant
was sentenced to incarceration in the Somerset County Jail for not less than twenty-four (24)
months and not more than forty-eight (48) months, and was further sentenced to abide by the
regulations and registration verification requirements of the Sex Offender Registration and
Notification Act. Defendant filed a Post-Sentence Motion, and on September 8, 2014, said
motion was denied. Thereafter, Defendant filed a Petition for Post-Conviction Collateral Relief
(hereinafter, the "Petition"), which was denied by Order of Court dated January 28, 2015.
Defendant's timely appeal followed.
In his Rule l 925(b) Statement of Matters Complained of on Appeal (hereinafter, the
"Statement"), Defendant asserts the following: Circulated 10/07/2015 11:32 AM
(1) This Court erred in determining that former trial counsel for Defendant (hereinafter,
"Trial Counsel") was not constitutionally ineffective where at no relevant time did
Trial Counsel credibly testify that they advised Defendant of the details, or even the
existence of, a formal plea offer that was communicated by the Commonwealth to
Trial Counsel and held open until the day of trial;
(2) This Court erred by according due weight to the equivocal testimony of Trial
Counsel to determine that Trial Counsel did, in fact, advise Defendant of the details
of a formal plea offer that was communicated by the Commonwealth to Trial
Counsel and held open until the day of trial where the formal record is devoid of any
evidence estab1ishing when Trial Counsel allegedly discussed the plea offer with
Defendant, where it was discussed, how it was discussed, and what was discussed,
when, in fact, Defendant presented evidence to the contrary, including, but not
limited to, the testimony of three witnesses, including Defendant;
(3) This Court erred as a matter of law in determining that Trial Counsel was not
constitutionally ineffective for failing to advise Defendant of a formal plea offer that
was communicated by the Commonwealth to Trial Counsel and held open until the
day of trial where the formal record is devoid of any evidence establishing
specifically when Trial Counsel allegedly discussed the plea offer with Defendant,
where it was discussed, how it was discussed, and what was discussed;
(4) Assuming, arguendo, Trial Counsel advised Defendant of the details of a formal
plea offer extended by the Commonwealth prior to trial and Defendant rejected the
same, this Court erred as a matter of law in finding that Trial Counsel was not
constitutionally ineffective where the Commonwealth communicated said offer to
? ' I Circulated 10/07/2015 11:32 AM
Trial Counsel on the day of trial and it is wholly undisputed that Trial Counsel
failed to communicate the re-extension of that offer to Defendant;
(5) This Court erred by improperly construing the question out of context and weighing
the evidence to find that Trial Counsel's ineffectiveness did not prejudice Defendant
because, according to the Court, Defendant failed to show that he would, in fact,
have accepted the Commonwealth's formal plea offer had said offer been
communicated to Defendant by Trial Counsel.
(Statement at ,r,r 15-19). We note that the reasons for the Order complained of are clearly
stated in our Memorandum and Order entered January 28, 2015. However, we briefly write
further to clarify the January 28, 2015 Memorandum and Order in light of Defendant's final
matter complained of on appeal: that we erred by improperly construing a question out of
context and weighing the evidence to find that Defendant was not prejudiced because
Defendant failed to show that he would have accepted the Commonwealth's plea offer had said
offer been communicated to Defendant by Trial Counsel. Id. at ,r 19.
The law in this Commonwealth is well settled: in PCRA proceedings based upon claims
of ineffective assistance of counsel, the burden is on the defendant to show that counsel's
ineffectiveness prejudiced the defense.3 Strickland v. Washington, 466 U.S. 668, 687 (1984).
That is, a defendant must show that counsel's error caused the prejudice such that there is a
reasonable probability that the result of the proceeding would have been different absent such
error. Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987); Commonwealth v. Washington, 927
A.2d 586 (Pa. 2007). "To show prejudice from ineffective assistance of counsel where a plea
offer has lapsed or been rejected because of counsel's deficient performance, [a] defendantl]
3 We must reiterate that Trial Counsel's performance in this case was not constitutionally ineffective. Although, for the purpose of being thorough, we addressed Defendant's prejudice argument in our Memorandum and Order entered January 28, 2015, an ultimate determination regarding prejudice to Defendant was unnecessary. Circulated 10/07/2015 11:32 AM
must demonstrate a reasonable probability they would have accepted the earlier plea offer had
they been afforded effective assistance of counsel." Missouri v. Frye,_ U.S._,_, 132
S.Ct. 1399, 1409 (2012).
In the Petition, it was Defendant's contention that the result of his criminal proceeding
would have been different because he would have accepted the Commonwealth's plea offer had
it been communicated to him immediately before trial. Defendant alleged that he had suffered
prejudice by standing trial and he is now suffering penalties that are more severe than those that
he would have received by accepting the Commonwealth's plea offer. In our Memorandum
and Order denying Defendant's Petition, we held that Defendant failed to satisfy his burden, as
we were not convinced that there existed a reasonable probability that he would have accepted
the plea offer immediately before trial had it been communicated to him by Trial Counsel. In
support of this holding, we found that: (1) Defendant's testimony was not credible; (2)
Defendant had previously rejected the very plea offer that was the basis of his Petition; and (3)
PCRA Counsel's hindsight question regarding whether Defendant would have accepted the
plea offer was not the correct inquiry.
In the Statement, Defendant contends that we misconstrued PCRA Counsel's question"
by considering it out of context and we erred by improperly weighing the evidence to find that
Defendant was not prejudiced. We disagree.
First, we submit that we did not "err . . . by improperly construing the question out of
context." Certainly, we reviewed this question in the context of the complete evidentiary
hearing. However, at that juncture, the onus was on Defendant to demonstrate that there
4 At the evidentiary hearing, PCRA Counsel asked Defendant "Would you have accepted [the plea] offer -- today, knowing the situation, would you have accepted that offer in order to avoid incarceration and avoid the Hfetime reporting responsibility?" (Evidentiary Hearing Transcript at page 5, lines 5-9, December 8, 2014). Defendant answered this question in the affirmative.
existed "a reasonable probability" he would have accepted the plea offer had he been afforded
the effective assistance of counsel. Frye, 132 S.Ct. at 1409. While we certainly understood the
basis of the evidentiary hearing and Defendant's underlying arguments, we found it telling that
Defendant did not directly testify that he would have accepted the Commonwealth's plea offer,
in order to avoid trial and the potential ramifications stemming from trial. There is little doubt
that we would not have applied such strict interpretation to PCRA Counsel's hindsight question
absent our credibility determinations, but this question and answer was a factor we considered
in reaching our determination that Defendant failed to satisfy his burden.
Most importantly, however, we considered Defendant's credibility. In denying
Defendant's Petition based in large part on his lack of credibility, we expressed our
'consideration of (1) the conflicting, credible testimony of Trial Counsel; and (2) Defendant's
tone, mannerisms, and behavior while testifying. Here, we write to again express our
determination that Defendant's testimony lacked credibility. Although difficult to articulate in
writing, we submit that Defendant's testimony did not carry with it a certain aura of
truthfulness. Indeed, this Court had the advantage of seeing Defendant testify in person, and
we were able to assess his demeanor, his actions, and his words. The manner in which
Defendant testified can best be described as defiant, and when coupled with the conflicting
testimony of Trial Counsel and the facts and circumstances surrounding this case, it is clear to
us that Defendant lacked what we believe to be necessary credibility. As such, our finding that
Defendant did not suffer prejudice was based on our determination that Defendant was being
untruthful when he testified that he would have accepted the Commonwealth's plea offer had it 5 been communicated to him immediately before trial.
s Again, it should be noted that Defendant testified he would have accepted the Commonwealth's plea offer, "today, knowing the situation." Circulated 10/07/2015 11:32 AM
Dated: March J/f' 2015 For Commonwealth: Lisa Lazzari-Strasiser, Esq.; District Attorney For Defendant: Daniel W. RuHo, Esq.