J-S71044-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL R. DORCZUK                         :
                                               :
                       Appellant               :   No. 838 EDA 2019

             Appeal from the PCRA Order Entered February 7, 2019
      In the Court of Common Pleas of Chester County Criminal Division at
                        No(s): CP-15-CR-0000468-2016


BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                             Filed: March 23, 2020

        Michael R. Dorczuk appeals from the order denying his petition for relief

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.

Dorczuk avers that his trial counsel was ineffective. We affirm.

        In January 2016, Dorczuk was charged with aggravated indecent assault

of a child, indecent assault of a person less than 13 years old, and endangering

the welfare of a child.1 Although Dorczuk’s preliminary hearing was scheduled

for February 2016, neither Dorczuk nor his counsel attended. Thus, all charges

were held for trial. However, prior to trial, on August 25, 2016, Dorczuk

entered into a negotiated guilty plea and the trial court sentenced him to an




____________________________________________


1   18 Pa.C.S.A. §§ 3125(b), 3126(a)(7), and 4304, respectively.
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aggregate term of 6 to 12 years’ incarceration, plus five years of consecutive

probation.2 Dorczuk did not file a direct appeal.

       On November 26, 2018, Dorczuk filed the instant timely, counseled,

PCRA petition. The PCRA court issued Rule 907 notice of its intention to dismiss

Dorczuk’s petition without a hearing on January 28, 2019. See Pa.R.Crim.P.

907. After Dorczuk filed a response, the PCRA court issued an order dismissing

his petition. Dorczuk filed a timely appeal and a Pa.R.A.P. 1925(b) statement.

The PCRA court filed a responsive order on April 8, 2019, which incorporated

the court’s reasoning contained in its January 28, 2019 order. On appeal,

Dorczuk presents the following single issue for our review: “Did the PCRA

[c]ourt err when it refused to find counsel was ineffective for failing to appear

at [Dorczuk’s] preliminary hearing, and therefore waiving this critical stage of

the proceedings?” Dorczuk’s Br. at 2.

       Dorczuk contends that his trial counsel not only failed to attend his

preliminary hearing but also failed to inform him about the hearing and as a

result, he also did not attend. Accordingly, Dorczuk avers his counsel was per

se ineffective because he never got the chance to “test” the evidence against

him prior to his negotiated guilty plea. He further posits that his negotiated

guilty plea should not preclude him from obtaining relief under the PCRA

because his trial counsel was ineffective. See 42 Pa.C.S.A. § 9543(a)(2)(ii)

____________________________________________


2 Following a hearing in August 2017, the trial court entered an order
designating Dorczuk as a sexually violent predator. However, the trial court
subsequently vacated this classification via an order dated February 5, 2018.

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(relief is warranted if a conviction resulted from “Ineffective assistance of

counsel which, in the circumstances of the particular case, so undermined the

truth-determining process that no reliable adjudication of guilt or innocence

could have taken place”). We decline to agree.

      Our standard of review of the denial of a PCRA petition is limited to

examining whether the evidence of record supports the court’s determination

and whether its decision is free of legal error. See Commonwealth v.

Conway, 14 A.3d 101, 108 (Pa.Super. 2011).

      All constitutionally recognized ineffectiveness claims, including those

arising where the defendant has pleaded guilty, are cognizable under the

PCRA. Commonwealth ex rel. Dadario v. Goldberg, 773 A.2d 126, 130

(Pa. 2001); Commonwealth v. Kelley, 136 A.3d 1007, 1012 (Pa.Super.

2016). We presume that counsel was effective and the petitioner bears the

burden of proving otherwise. See Commonwealth v. Daniels, 963 A.2d 409,

427 (Pa. 2009). A petitioner claiming ineffectiveness must thus plead and

prove three things: (1) the underlying claim has arguable merit, (2) counsel

had no reasonable basis for the contested action or inaction, and (3) the

petitioner has sustained prejudice. See Commonwealth v. Washington,

927 A.2d 586, 594 (Pa. 2007). Prejudice occurs, in the context of a guilty plea,

only if the ineffectiveness caused the petitioner to enter an involuntary or

unknowing plea. Commonwealth v. Moser, 921 A.2d 526, 531 (Pa.Super.

2007).




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      Here, Dorczuk asserts that we should presume prejudice under United

States v. Cronic, 466 U.S. 648, 653 (1984). He notes the statement of the

Court in Cronic that there is a presumption of prejudice “if counsel entirely

fails to subject the prosecution's case to meaningful adversarial testing….”

See Dorczuk’s Br. at 7; Cronic, 648 U.S. at 659. He then argues, “By

absenting himself (and his client) from the preliminary hearing, prior counsel

forfeited Defendant’s right to test the Commonwealth’s evidence.” Id. at 7-8.

      This argument fails. Cronic’s presumption of prejudice only applies

where the alleged defect “necessarily undermine[s] the reliability of the entire

criminal proceeding.” Ditch v. Grace, 479 F.3d 249, 256 (3d Cir. 2007) (citing

United States v. Owen, 407 F.3d 222, 228 (4th Cir. 2005)). Indeed, the

United States Supreme Court has concluded that although the failure to

provide the defendant counsel at a preliminary hearing amounted to a

deprivation of counsel during a “critical stage” of the proceedings, such an

error is nonetheless subject to harmless error analysis. See Coleman v.

Alabama, 399 U.S. 1, 9-10, 11 (1970). “[O]nly those ‘Sixth amendment

violations that pervade the entire proceeding’ can ‘never be considered

harmless.” Sweeney v. United States, 766 F.3d 857, 860-61 (8th Cir. 2014)

(quoting Satterwhite v. Texas, 486 U.S. 249, 256 (1998)). Dorczuk’s claim

of per se prejudice under Cronic fails.

      Nor does Dorczuk establish actual prejudice. He makes no claim that his

counsel’s error caused him to enter an involuntary or unknowing plea.

Dorczuk’s failure to establish this causal nexus dooms his ineffective

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assistance of counsel claim. Accordingly, Dorczuk’s single issue on appeal

warrants no relief and we affirm the PCRA court’s order dismissing his PCRA

petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/20




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