J-S45013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JOHN LEROY KROL,

                            Appellant                No. 1288 WDA 2015


                 Appeal from the PCRA Order of July 27, 2015
               In the Court of Common Pleas of Bedford County
              Criminal Division at No(s): CP-05-CR-0000090-2011


BEFORE: OLSON, DUBOW AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                               FILED JULY 21, 2016

       Appellant, John Leroy Krol, appeals from the order entered on July 27,

2015 dismissing his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon careful review, we affirm.

       We briefly summarize the facts and procedural history of this case as

follows. In March 2012, Appellant pled guilty to 12 criminal offenses related

to his assault and attempted murder of a female minor. On direct appeal to

this Court, Appellant argued, inter alia, that the trial court erred by refusing

to permit the withdrawal of his guilty plea.1 See Commonwealth v. Krol,

82 A.3d 1062 (Pa. Super. 2013) (unpublished memorandum).                In that

____________________________________________


1
  Appellant’s direct appeal raised this claim via a brief filed pursuant to
Anders v. California, 386 U.S. 738 (1967).



*Retired Senior Judge assigned to the Superior Court.
J-S45013-16


appeal, Appellant alleged that the trial court erred when it denied his motion

to withdraw his guilty plea and then accepted an involuntary, unknowing,

and unintelligent plea.        Id. at 5-6.     On July 11, 2013, this Court denied

relief and affirmed Appellant’s judgment of sentence in an unpublished

memorandum. Id. at 8. On March 11, 2014, Appellant filed a pro se PCRA

petition, alleging, inter alia, that he “was misled [and] tricked into a guilty

plea in [sic] which [Appellant] did not want. [Appellant] wanted to proceed

with [a] plea of not guilty by reason of insanity.” PCRA Petition, 3/6/2014,

at 4, ¶ 13. The petition did not allege ineffective assistance of counsel. On

April 4, 2014, the PCRA court appointed PCRA counsel to represent

Appellant. PCRA counsel did not file an amended petition. The PCRA court

held a hearing on July 15, 2015, but did not hear any evidence. On July 27,

2015, the PCRA court entered an order denying Appellant relief, on the

grounds that the validity of Appellant’s claim was previously litigated on

direct appeal. This timely appeal followed.2

       On appeal, Appellant presents one question for our review:

         I.     Whether the [PCRA] court erred in not holding an
                evidentiary hearing on [] Appellant’s PCRA petition?

Appellant’s Brief at 6 (complete capitalization omitted).



____________________________________________


2
  Appellant and the PCRA court complied with Rule 1925 of the Pennsylvania
Rules of Appellate Procedure.



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      On appeal, Appellant argues that “[b]y denying [] Appellant the

opportunity to testify and make a record as to why he believed his guilty

plea was unlawfully induced,” he could not meet his burden to show trial

counsel rendered ineffective assistance in representing Appellant. Id. at 12.

As such, Appellant contends the PCRA court erred by denying relief based

upon previous litigation. Id.

      Our Supreme Court determined:

        Our standard of review on appeal from the denial of PCRA
        relief limits us to examining whether the ruling of the PCRA
        court is supported by the record and free of legal error.
        Under the PCRA, appellant bears the burden of proving by a
        preponderance of the evidence that his conviction or
        sentence resulted from a violation recognized in 42 Pa.C.S.
        § 9543(a)(2). Appellant must further demonstrate that the
        issues he pursues have not been previously litigated or
        waived. Id. § 9543(a)(3). An issue will be deemed
        previously litigated pursuant to the PCRA if the highest
        appellate court in which the petitioner was entitled to review
        as a matter of right has ruled on its merits. A claim will be
        deemed waived under the PCRA “if the petitioner could have
        raised it but failed to do so before trial, at trial, ... on appeal
        or in a prior state post conviction proceeding.” 42 Pa.C.S.
        § 9544(b).

                            *          *            *

        [[C]ollateral claims of trial counsel ineffectiveness deriving
        from an underlying claim of error that was litigated on direct
        appeal cannot automatically be dismissed as “previously
        litigated.” Rather, Sixth Amendment claims challenging
        counsel's conduct at trial are analytically distinct from the
        foregone claim of trial court error from which they often
        derive, and must be analyzed as such. To succeed on a
        claim of counsel ineffectiveness, of course, the defendant
        must rebut the presumption of competence and
        demonstrate both ends of the performance and actual
        prejudice test outlined in Strickland v. Washington, 466


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J-S45013-16


        U.S. 668 (1984) and Commonwealth v. Pierce, 527 A.2d
        973 (Pa. 1987).

Commonwealth v. Puksar, 951 A.2d 267, 271, 274 (Pa. 2008) (some case

citations omitted).

      Our Supreme Court has previously determined:

        [I]t is settled law that a [PCRA] petitioner must plead and
        present argument regarding trial counsel's conduct.
        Specifically, [the] petitioner must assert that the claim is of
        arguable merit, that counsel had no reasonable trial
        strategy to pursue the chosen course of action, and that but
        for the act or omission in question, the outcome of the
        proceeding would have been different. If the petitioner has
        failed to make this pleading or presentation to the court, he
        has not preserved his claim.

        On the other hand, when the petitioner has pled and
        presented trial counsel's ineffectiveness pursuant to [the
        three-prong test above, an appellate court] will review the
        claim to determine whether he has proved trial counsel's
        ineffectiveness. It is the petitioner's burden to prove all
        three prongs of the ineffectiveness test.

Commonwealth v. Rush, 838 A.2d 651, 657 (Pa. 2003).

      In his PCRA petition, Appellant baldly claimed that he “was misled

[and] tricked into a guilty plea[, because he] wanted to proceed with the

plea of not guilty by reason of insanity.” PCRA Petition, 3/6/2014, at 4, ¶

13. However, in that PCRA petition, Appellant did not plead and prove the

three prongs of the test for counsel ineffectiveness with regard to his guilty

plea. In fact, the PCRA petition does not mention counsel at all. Hence, we

conclude that Appellant failed to preserve an ineffectiveness claim for

purposes of appellate review.     See Rush, 888 A.2d at 657.         Moreover,



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Appellant’s effort to raise an ineffectiveness claim for the first time on appeal

is unavailing. “Issues not raised in the lower court are waived and cannot be

raised for the first time on appeal.”       Pa.R.A.P. 302(a). Thus, Appellant

waived his derivative claim alleging that plea counsel was ineffective.

      Turning now to Appellant’s freestanding challenge to the validity of his

guilty plea, our review of the certified record in this matter reveals that this

Court considered the merits of this claim in the context of Appellant’s direct

appeal.   See Commonwealth v. Krol, 82 A.3d 1062 (Pa. Super. 2013)

(unpublished memorandum) at 5.           At that time, we determined that

Appellant’s guilty plea challenge was wholly frivolous.     Id. at 8.   Because

this Court reviewed the merits of Appellant’s plea challenge during the

course of direct review, the PCRA court did not err in dismissing Appellant’s

current PCRA petition as previously litigated.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2016




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