Com. v. Zirkle, S.

J. S08021/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
STEVEN ANDREW ZIRKLE, : No. 752 WDA 2016
:
Appellant :
Appeal from the Order Entered April 22, 2016,
in the Court of Common Pleas of Crawford County
Criminal Division at Nos. CP-20-CR-0000143-2009,
CP-20-CR-0000147-2009
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND SOLANO, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 04, 2017
Steven Andrew Zirkle appeals from the April 22, 2016 order entered in
the Court of Common Pleas of Crawford County that dismissed his second
petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546, which the PCRA court treated as his first
petition. After careful review, we affirm.
Another panel of this court set forth the following:
The trial court summarized the procedural
history of this case:
[Zirkle] was charged at [Case 143] with
two counts of burglary, two counts of
criminal trespass, and one count of
criminal mischief, 18 Pa.C.S. §§ 3502(a),
3503(a)(1)(ii), 3304(a)(1), respectively,
and at [Case 147] with one count each of
burglary, criminal trespass, terroristic
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threats, theft by unlawful taking, and
receiving stolen property, id.
§§ 3502(a), 3503(a)(1)(ii), 2706,
3921(a), 3925(a), respectively. The two
cases were consolidated for trial, at
which Zirkle was self-represented [with
stand-by counsel], and he was convicted
on all ten counts. On January 27, 2010,
he received an aggregate sentence of ten
to twenty years of imprisonment at each
case, to be served consecutively, with
credit for 403 days of presentence
incarceration.
Zirkle filed post-sentence motions for
acquittal, for a new trial, and for
sentence modification, which were all
denied, and judgment of sentence was
affirmed on appeal to the Superior Court.
A timely filed petition under the Post
Conviction Relief Act (“PCRA”),
42 Pa.C.S. § 9541 et seq., resulted in
the reinstatement of Zirkle’s right to
appeal to the Pennsylvania Supreme
Court for discretionary review, but
[allocatur] was denied on December 27,
2012.
Commonwealth v. Zirkle, 107 A.3d 127, 131 (Pa.Super. 2014) (brackets
in original), appeal denied, 117 A.3d 297 (Pa. 2015).
Appellant then filed his second pro se PCRA petition on or about
June 24, 2013, which the PCRA court treated as his initial petition and
appointed counsel to represent him. In his counseled amended PCRA
petition, Zirkle claimed, inter alia, the ineffective assistance of trial counsel
and appellate counsel. The PCRA court addressed each of the
ineffectiveness claims in its opinion of October 18, 2013. In that opinion,
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the court found merit to appellant’s allegation that appellate counsel was
ineffective in failing to argue on appeal that his three criminal trespass
convictions were erroneously graded as second-degree, rather than
third-degree, felonies because entry was made through unlocked doors
without the use of force. The PCRA court vacated its original January 27,
2010 sentence, and resentenced on December 3, 2013. Although the court
had thoroughly addressed any and all of the ineffectiveness of counsel
claims in its October 18, 2013 opinion, it held in abeyance an actual denial
of those claims pending the appeal on appellant’s resentence.
On appeal to this court, appellant raised several discretionary aspects
of sentence issues relative to his resentence. This court affirmed appellant’s
judgment of sentence on December 18, 2014; and on June 17, 2015, our
supreme court denied appellant’s petition for allowance of appeal.
Following remand of the case, the PCRA court, by order, gave notice of
its intent to dismiss all remaining claims pursuant to Pa.R.Crim.P. 907(1) in
appellant’s counseled petition which it had already addressed in its October
2013 opinion. The PCRA court then denied appellant’s petition, and
appellant now appeals that denial.
Unfortunately, appellant has not specifically addressed any issues
within the rubric of ineffectiveness of counsel. Rather, appellant argues:
1. Whether the trial court erred in denying
Appellant’s request at the time of his First
Amended PCRA proceedings to be permitted to
file/re-file his direct appeal nunc pro tunc,
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with the benefit of a brief that was not
defective such that this Honorable Court was
unable to reach the merits of his arguments?
2. Whether the burden on direct appeal is
sufficiently different than it is for a PCRA
appeal such that Appellant suffered prejudice
by the trial court not permitting him to
file/re-file his direct appeal nunc pro tunc,
and, instead, requiring the undersigned to file
a Petition for Allowance of Appeal limited to the
areas not deemed waived by this Honorable
Court?
Appellant’s brief at 3.
Appellant cites and argues Commonwealth v. Grosella, 902 A.2d
1290 (Pa.Super. 2006), for the proposition that he should have been
permitted to file an entirely new direct appeal because the performance of
original direct appeal counsel was so deficient that he was effectively
deprived entirely of his right of direct appeal. Unfortunately for appellant,
Grosella is clear in stating:
However, it is also well-settled that the
reinstatement of direct appeal rights is not the
proper remedy when appellate counsel perfected a
direct appeal but simply failed to raise certain claims.
See Johnson, supra. Where a petitioner was not
entirely denied his right to a direct appeal and only
some of the issues the petitioner wished to pursue
were waived, the reinstatement of the petitioner’s
direct appeal rights is not a proper remedy. See
Halley, 582 Pa. at 172, 870 A.2d at 801 (noting the
significant difference between “failures that
completely foreclose appellate review, and those
which may result in narrowing its ambit”); Johnson;
supra (noting this Court has expressly distinguished
between those cases where a PCRA petitioner is
entitled to a direct appeal nunc pro tunc where
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prior counsel’s actions, in effect, entirely denied his
right to a direct appeal, as opposed to a PCRA
petitioner whose prior counsel’s ineffectiveness may
have waived one or more, but not all, issues on
direct appeal); Commonwealth v. Ginglardi, 758
A.2d 193 (Pa.Super.2000) (indicating that where two
of the three issues presented on direct appeal were
waived the relief afforded under Lantzy was
unavailable to a PCRA petitioner). In such
circumstances, the appellant must proceed under the
auspices of the PCRA, and the PCRA court should
apply the traditional three-prong test for determining
whether appellate counsel was ineffective.
Grosella, 902 A.2d at 1293-1294 (footnotes omitted; emphasis in original).
Appellant raised direct appeal counsel’s alleged deficient performance
in his amended PCRA petition, and the PCRA court addressed the claim.
Additionally, on direct appeal, this court did address various issues raised on
appeal, finding some without merit and some not sufficiently presented.
Appellant properly presented these claims to the PCRA court, and that court
thoroughly addressed each issue and found no merit. We agree with the
PCRA court’s reasoning. Moreover, we could find the issues raised to be
waived for failure to present them in the framework of an ineffective
assistance of counsel analysis. Appellant is not entitled to another direct
appeal nunc pro tunc.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/4/2017
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