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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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
J. S08021/17


                  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,



                                      -2-
J. S08021/17


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,


                                      -3-
J. S08021/17


                   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


                                      -4-
J. S08021/17


            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.




                                     -5-
J. S08021/17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/4/2017




                          -6-
