J-S61033-14

NON-PRECEDENTIAL DECISION            SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,          :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                       Appellee        :
                                       :
                  v.                   :
                                       :
JEROME REGIS KIRSCH, JR.,              :
                                       :
                       Appellant       :     No. 688 WDA 2014

                   Appeal from the Order April 24, 2014,
            in the Court of Common Pleas of Allegheny County,
            Criminal Division at No(s): CP-02-CR-0003050-2011

BEFORE: FORD ELLIOTT, P.J.E., WECHT and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                 FILED OCTOBER 07, 2014

      Jerome Regis Kirsch, Jr. (Appellant), appeals from the order entered

on April 24, 2014, dismissing his petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      The background underlying this matter was summarized by a prior

panel of this Court.


         16, 2010[,] at which time [Appellant] was charged at

         with two counts of Involuntary Deviate Sexual
         Intercourse[,] three counts of Criminal Solicitation[,] two
         counts of Aggravated Indecent Assault[,] two counts of
         Endangering the Welfare of Children, two counts of
         Indecent Exposure, two counts of Corruption of Minors,
         and one count of Indecent Assault. [Appellant] was also
         charged at [docket number] CC[]201201972 [(hereinafter


         On August 7, 2012, [Appellant] entered into a negotiated
         plea agreement at [docket number 3050. Pursuant to the


* Retired Senior Judge assigned to the Superior Court.
J-S61033-14

         agreement, Appellant agreed to plead guilty to the
         following counts:] Count 7 (Endangering the Welfare of a
         Child), Count 9 (Indecent Exposure), Count 11 (Corruption
         of Minors)[,] and Count 13 (Indecent Assault)[.        In
         exchange, the Commonwealth agreed to withdraw the
         remaining charges at the docket number and recommend

         docket number 1972, Appellant] also entered into a plea
         agreement pursuant to which [Appellant] would plea[d
         guilty to theft and receive a sentence of probation.]

Commonwealth v. Kirsch, 93 A.3d 501 (Pa. Super. 2013) (unpublished

memorandum at 1-2) (citation omitted).

      The trial court sentenced Appellant at docket number 3050 to an

aggregate term of 10 years of probation and at docket number 1972 to a 2

year term of probation. Appellant did not file a direct appeal.

      Appellant timely filed a PCRA petition.     The PCRA court appointed

counsel to represent Appellant, and counsel filed an amended PCRA petition.



assistance by coercing and threatening Appellant into taking the plea

agreement.    According to Appellant, coun

plea unknowing, involuntary, and unintelligent.

      The PCRA court scheduled a hearing for March 18, 2013.         When

Appellant failed to appear at the hearing, the Commonwealth moved to

dismiss the PCRA petition for failure to prosecute. The PCRA court granted



         On April 15, 2013, [Appellant] filed a [m]otion for
         [r]econsideration of the March 18, 2013 order[.] In his
         [p]etition, [Appellant averred] the following:


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J-S61033-14

                                   ...

         [] 11. [On August 24, 2012, Appellant was arrested for
         an alleged violation of his probation.] On March 7,
         2013, [Appellant] was released from the Allegheny
         County Jail.

         12. By order dated March 7[, 2013 and entered March
         11, 2013, the PCRA court scheduled a hearing on
                          p]etition.


         became aware of the March 18, 2013 PCRA hearing



                                                       each
         [Appellant] prior to the March 18, 2013 evidentiary
         hearing.



         Commonwealth appeared for the hearing scheduled for
         that date[. Appellant] failed to ap

         that Appellant] received notice of the March 18, 2013

         jail[.   The Commonwealth] orally moved to dismiss

         to   prosecute[.    The    PCRA   court    granted   the



         16. The following week, a warrant was issued for

         [A
         and lodged in the Allegheny County Jail.

         17. On or about April 5, 2013, [Appellant] notified [his
         counsel] that he [did not] receive notice of the March
         18, 2013 hearing.[]




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J-S61033-14

          On April 15, 2013, the PCRA
      motion for reconsideration and, that day, Appellant filed a timely


Commonwealth v. Kirsch, 93 A.3d 501 (Pa. Super. 2013) (unpublished

memorandum at 4-5) (citation omitted).

      On appeal, Appellant raised a number of issues, including whether the

PCRA court erred by dismissing his PCRA petition for failure to prosecute

without holding a hearing. This Court concluded that the PCRA court did err

in this regard.    Consequently, the Court vacated the order dismissing



instructions. More specifically, this Court directed the PCRA court to hold a



2013, hearing was voluntary or the result of a lack of notice to Appellant.



failure to appear was the result of lack of notice, the court must then hold a



      The PCRA court held a hearing on April 10, 2014.      At the beginning

and end of the hearing, the court stated that it would assume that Appellant

did not receive notice of the March 18, 2013, hearing and that it would

decide the petition on its merits. Appellant and plea counsel were the only

witnesses to testify at the hearing.

      On April 24, 2014, the PCRA court entered an order dismissing




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J-S61033-14

simultaneously filed a Pa.R.A.P. 1925(b) statement wherein he raised the

same issue we noted above, i.e., trial counsel was ineffective by coercing



1925(b) statement by authoring an opinion.       The court concluded, inter alia,

that Appella

plea.

        In his brief to this Court, Appellant asks us to consider the question

that follows.


        unintelligent, and entered as a result of ineffective assistance of
        counsel as [plea counsel] threatened/coerced [Appellant] into
        pleading guilty by representing that [Appellant] would be
        convicted if he went to trial and would receive a sentence of 20
        to 40 years [of] incarceration?



omitted).

        Appellant summarizes his argument in support of his issue as follows.


                                                             ellant] into
        accepting the plea agreement with threats that [Appellant]
        would get convicted if he went to trial and that he would receive
        a sentence of 20 to 40 years in prison. Plea counsel had no
        reasonable basis for making such threats. [Appellant] suffered
        prejudice because, but for said coercion/threats, he would not


Id. at 10.

              Our standard in reviewing a PCRA court order is abuse of
        discretion. We determine only whether the court's order is
        supported by the record and free of legal error. This Court
        grants great deference to the findings of the PCRA court, and we


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J-S61033-14

     will not disturb those findings merely because the record could
     support a contrary holding. We will not disturb the PCRA court's
     findings unless the record fails to support those findings.

           A criminal defendant has the right to effective counsel
     during a plea process as well as during trial. A defendant is
     permitted to withdraw his guilty plea under the PCRA if
     ineffective assistance of counsel caused the defendant to enter
     an involuntary plea of guilty.

           We conduct our review of such a claim in accordance
        with the three-pronged ineffectiveness test under section
        9543(a)(2)(ii) of the PCRA, 42 Pa.C.S.A. § 9543(a)(2)(ii).
        The voluntariness of the plea depends on whether
        counsel's advice was within the range of competence
        demanded of attorneys in criminal cases.

            In order for [an a]ppellant to prevail on a claim of
        ineffective assistance of counsel, he must show, by a
        preponderance of the evidence, 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.     [An a]ppellant must demonstrate:         (1) the
        underlying claim is of arguable merit; (2) that counsel had
        no reasonable strategic basis for his or her action or
        inaction; and (3) but for the errors and omissions of
        counsel, there is a reasonable probability that the outcome
        of the proceedings would have been different.            The
        petitioner bears the burden of proving all three prongs of
        the test.

     Moreover, trial counsel is presumed to be effective.

Commonwealth v. Rathfon, 899          A.2d 365, 369 (Pa. Super. 2006)

(citations and quotation marks omitted).

     During his plea colloquy, Appellant was asked whether any threats or

promises, other than the potential plea agreement, may have influenced his




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J-S61033-14

Id.   In addition, Appellant

advice and representation.1    Id. at 12-

statements, and he may not now assert grounds for withdrawing the plea

                                     Commonwealth v. Timchak, 69 A.3d

765, 774 (Pa. Super. 2013).

      For these reasons, we conclude that the PCRA court properly dismissed



      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/7/2014




1
  In his written explanation of his guilty plea, Appellant stated that no one
forced him to enter his plea, that he was entering his plea on his free will,
and that no one had threatened him to enter the plea.              Guilty Plea
                                                        -55. Appellant further
                                                               l advice and
representation. Id. at ¶61.


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