J-S60029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JAMES CROAK

                            Appellant                  No. 2938 EDA 2015


                Appeal from the PCRA Order September 3, 2015
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0003014-2013
                                          CP-09-CR-0003924-2013


BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                             FILED OCTOBER 25, 2016

        James Croak appeals, pro se, from the order entered September 3,

2015, in the Bucks County Court of Common Pleas denying his first petition

for collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”). 1

Croak seeks review of the judgment of sentence of an aggregate term of five

to 10 years’ imprisonment imposed by the trial court on January 16, 2014,

following his jury conviction at Docket No. 3924-2013, of charges of persons

not to possess firearms and possession of a small amount of marijuana, and

his guilty plea at Docket No. 3014-2013, to possession with intent to deliver


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    See 42 Pa.C.S. §§ 9541-9546.
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(“PWID”) controlled substances and related charges.2        On appeal, Croak

purports to challenge the ineffectiveness of trial counsel.          However,

recognizing that his claims have been waived, he also argues the waiver

should be excused (1) because his petition was filed pro se, and (2) the

United States Supreme Court’s decision in Martinez v. Ryan, 132 S.Ct.

1302 (U.S. 2012) applies. For the reasons below, we affirm.

       The PCRA court summarized the relevant facts and procedural history

underlying this appeal as follows:

             On October 22, 2013, [Croak] was convicted by a jury of
       persons not to possess, use, manufacture, control, sell or
       transfer firearms (enumerated offense – burglary), 18 Pa.C.S. §
       6105(a)(1), and possession of a small amount of marijuana, 35
       P.S. § 780-113(a)(31)(i) [at Docket No. 3924-2013].        The
       following day, [Croak] entered a guilty plea to two counts of
       delivery of a controlled substance, 35 P.S. § 780-113(a)(30),
       two counts of possession of a controlled substance, 35 P.S. §
       780-113(a)(16), and two counts of criminal use of a
       communication facility, 18 Pa.C.S. § 7512(a) [at Docket No.
       3014-2013].

             On January 16, 2014, [Croak] was sentenced to five to ten
       years in the firearms case. He was sentenced to two to four
       years and a concurrent term of seven years probation in the
       drug case. The sentences in both cases were run concurrent to
       one another. [Croak] thereafter filed a timely appeal challenging
       the sufficiency of the evidence to support the jury verdict in the
       firearms case. Judgment of sentence was affirmed on November
       18, 2014. [See Commonwealth v. Croak, 113 A.3d 351 (Pa.
       Super. 2014) (unpublished memorandum).] No appeal was
       taken from the judgment of sentence in the drug case.
____________________________________________


2
  See 18 Pa.C.S. § 6105(a)(1) and 35 P.S. §§ 780-113(a)(31)(i) and
(a)(30), respectively.




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            On January 22, 2015, [Croak] filed a single pro se PCRA
     petition listing both cases in the caption of the Petition. [Croak]
     generally alleged that his rights under the United States
     Constitution and the Pennsylvania Constitution were violated and
     further alleged ineffective assistance of counsel as his basis for
     relief. He did allege (sic) how or when his constitutional rights
     had been violated or how or when trial counsel had failed to
     provide effective assistance. He did not cite to any portion of
     the record. He made no allegations of fact to support his
     nonspecific legal assertions.

            By order dated February 11, 2015, this Court granted
     [Croak’s] request to proceed in forma pauperis and appointed
     counsel to represent him for purposes of the PCRA proceedings.
     PCRA counsel was directed to file an amended PCRA petition
     setting forth with specificity all legal claims that [Croak] intended
     to pursue, including clarification of any claims raised in the pro
     se Petition. On May 26, 2015, PCRA counsel filed a “no merit”
     letter pursuant to Commonwealth v. Turner, 518 Pa. 491, 544
     A.2d 927 (1988) and Commonwealth v. Finley, 379 Pa. Super.
     390, 550 A.2d 213 (1988) along with a Petition for Leave to
     Withdraw Appearance. The Commonwealth filed its Answer on
     June 16, 2015 addressing the pro se PCRA petition and the
     issues identified in PCRA counsel’s Turner/Finley letter.

            After reviewing the record in both cases, this Court
     concluded that there were no genuine issues of material fact,
     that [Croak] was not entitled to post-conviction relief and that
     no purpose would be served by further proceedings. Therefore,
     on June 16, 2015, this Court filed Notice of Intent to Dismiss
     [Croak’s] PCRA Petitions without a hearing pursuant to Rule 907
     of the Pennsylvania Rules of Criminal Procedure and granted
     PCRA counsel’s Petition to Withdraw. In a timely filed written
     response, [Croak] notified this Court that claims had been
     omitted from his PCRA Petition. He did not identify those claims.
     By order dated July 21, 2015, this Court granted [Croak] thirty
     days to identify the omitted claims. Prior to the expiration of
     that thirty-day period, [Croak] made a written request for an
     additional period of time to identify the omitted claims. On
     August 19, 2015, an order was entered granting [him] an
     additional ten days to respond. As of September 3, 2015,
     [Croak] had failed to inform this Court of any new grounds for
     relief or to challenge PCRA counsel’s identification and analysis
     of the issues she represented [Croak] wished to pursue. On
     September 3, 2015, this Court entered an order denying and

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       dismissing [Croak’s] pro se PCRA Petition without a hearing.
       [Croak] thereafter filed a timely appeal.

PCRA Court Opinion, 1/8/2016, at 1-3.3

       Before we address the substantive claims on appeal, we make two

preliminary observations. First, Croak acknowledges the issues raised herein

“relate only to the gun case jury trial” at Docket No. 3924-2013. Croak’s

Brief at 5 n.1.       Accordingly, we need not consider the guilty plea and

conviction at Docket No. 3014-2014.

       Second, we note that on February 3, 2016, Croak filed a motion to

withdraw the appeal so that he could seek relief in a federal habeas corpus

proceeding, apparently recognizing his ineffectiveness claims may be

waived.     In a per curiam order, the motions panel of this Court denied

Croak’s request without prejudice to his right to raise the issue again in his

brief. See Order, 2/25/2016. He has not, however, renewed his request to

withdraw the petition in his brief, and consequently, we proceed to an

examination of the claims raised on appeal.

       Our review of an order dismissing a PCRA petition is well-established:

we must determine whether the PCRA court’s findings of fact are supported

by the record, and whether its legal conclusions are free from error.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “Great deference
____________________________________________


3
  On September 23, 2015, the PCRA court ordered Croak to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Croak complied with the court’s directive, and filed a concise statement on
September 28, 2015.



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is granted to the findings of the PCRA court, and these findings will not be

disturbed    unless   they    have   no   support   in   the    certified   record.”

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citation

omitted). Furthermore, a petitioner is not entitled to an evidentiary hearing,

and a PCRA court may decline to hold a hearing “if the petitioner’s claim is

patently frivolous and has no support either in the record or other evidence.”

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (quotation

omitted).

      Croak’s only two substantive issues assert the ineffectiveness of trial

counsel.    Specifically, he claims trial counsel (1) failed to file a motion to

suppress the gun recovered from his home, when the police entered illegally,

without a warrant and in the absence of exigent circumstances, and (2)

failed to object when the Commonwealth elicited testimony that referred to

his post-arrest silence.     See Croak’s Brief at 18-25.       However, neither of

these issues were included in Croak’s pro se PCRA petition or his Pa.R.A.P.

1925(b) concise statement. Accordingly, they are waived on appeal. See

Commonwealth v. Baumhammers, 92 A.3d 708, 730 (Pa. 2014) (issues

not included in a PCRA petition are waived on appeal); Commonwealth v.

Diamond, 83 A.3d 119, 136 (Pa. 2013) (issues not included in Pa.R.A.P.

1925(b) statement are waived on appeal), cert denied, 135 S.Ct. 145 (U.S.

2014).

      Moreover, we note the PCRA court provided Croak with the opportunity

to file a pro se amended petition, after counsel was permitted to withdraw,

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in order to raise the claims he asserted PCRA counsel failed to address.

However, even after the court granted his request for additional time to

complete the filing, Croak failed to do so.            Accordingly, we have no

hesitation in concluding his allegations of trial counsel’s ineffectiveness are

waived.

       Nevertheless, Croak contends his waiver of these claims should be

excused for two reasons.         First, he asserts that if this Court construes his

pro se filings liberally, “his claim of ineffectiveness for failure to file a

suppression motion concerning the illegal warrantless seizure of the gun can

be gleaned from the original and amended PCRA petitions.”4 Croak’s Brief at

11. We disagree.

       It is well-established that “although this Court is willing to construe

liberally materials filed by a pro se litigant, pro se status generally confers

no special benefit upon an appellant.” Commonwealth v. Lyons, 833 A.2d

245, 251–252 (Pa. Super. 2003), appeal denied, 879 A.2d 782 (Pa. 2005).

Here, Croak did not address any specific claims in his pro se petition, but

rather included only a list of legal terms such as: “inafective (sic) counsel,”

“exigent circumstances,” “plain view,” and “suppression of evidence.”

Motion for Post Conviction Collateral Relief, 1/22/2015, at 4. Further, as the


____________________________________________


4
  Croak does not make a similar claim regarding his assertion that counsel
was ineffective for failing to object when the Commonwealth elicited
testimony concerning his post-arrest silence.



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Commonwealth notes in its brief, Croak’s petition purported to challenge his

guilty plea for the drug offenses at Docket No. 3014-13, as well as his jury

conviction on the gun charge at Docket No. 3924-13. See Commonwealth’s

Brief at 12. Based on the limited information provided by Croak, the PCRA

court    could    not   have      determined       that    Croak   was        asserting     the

ineffectiveness of counsel in the gun case for failing to seek suppression of

the firearm recovered. Accordingly, Croak’s claim that the PCRA court did

not “liberally” interpret his petition fails.5

        Second,    Croak    argues      we     should     excuse   the    waiver       of   his

ineffectiveness claim based upon the United States Supreme Court’s decision

in Martinez, supra. Specifically, he contends the Martinez decision should

“apply    to   excuse    waiver    in   state    court    of   claims    of    trial   counsel

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5
  We observe that PCRA counsel’s “no merit” letter did not address any claim
concerning the ineffectiveness of prior counsel despite the fact that Croak’s
pro se petition clearly put counsel on notice of a possible ineffectiveness
issue. Nevertheless, Croak has not challenged the court’s ruling permitting
PCRA counsel to withdraw, and this Court is prohibited from reviewing the
sufficiency of a “no merit” letter sua sponte. Commonwealth v. Pitts, 981
A.2d 875, 879 (Pa. 2009). Furthermore, as noted supra, the PCRA court
granted Croak leave to amend his pro se petition after counsel was
permitted to withdraw and the court issued its Rule 907 notice, but Croak
failed to do so. See Commonwealth v. Smith, 121 A.3d 1049, 1054 (Pa.
Super. 2015) (“A petitioner’s failure to raise an ineffectiveness of counsel
claim after receiving Rule 907 notice results in waiver of the claim.”), appeal
denied, 136 A.3d 981 (Pa. 2016).




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ineffectiveness that were caused by PCRA counsel ineffectiveness.” Croak’s

Brief at 13.

      In Martinez, the United States Supreme Court considered “whether a

federal habeas court may excuse a procedural default of an ineffective-

assistance claim when the claim was not properly presented in state court

due to an attorney's errors in an initial-review collateral proceeding.”

Martinez, supra, 132 S. Ct. at 1313. In concluding a federal habeas court

may excuse the apparent waiver of an ineffectiveness claim under limited

circumstances, the Court held:

      Where, under state law, claims of ineffective assistance of trial
      counsel must be raised in an initial-review collateral proceeding,
      a procedural default will not bar a federal habeas court from
      hearing a substantial claim of ineffective assistance at trial if, in
      the initial-review collateral proceeding, there was no counsel or
      counsel in that proceeding was ineffective.

Id. at 1320.

      In Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), the

Pennsylvania Supreme Court discussed the impact of the Martinez decision

in the context of our state PCRA jurisprudence.            The Holmes Court

recognized the Martinez ruling “created a federal safety valve to allow for a

third level of review—exclusively federal—if the subject claim involved a trial

default, and initial collateral review counsel did not recognize it,” and

observed “the case does establish a new federal habeas corpus consequence

that jeopardizes both a Pennsylvania procedural default rule and the State’s

power and right to pass upon constitutional claims in the first instance.” Id.


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at 583.    However, ultimately, the Holmes Court concluded any change in

Pennsylvania’s law regarding procedural default of ineffectiveness claims

“should await the action of the General Assembly … or a case where the

issue is properly joined.” Id. at 584. Croak contends this appeal is such a

case. We disagree.

       Here, although PCRA counsel failed to raise Croak’s claims of trial

counsel’s ineffectiveness, the PCRA court gave Croak the opportunity to

present those claims himself in an amended petition. He then failed to do

so. We cannot accept Croak’s argument that the Martinez decision should

excuse PCRA counsel’s waiver of his claims of trial counsel’s ineffectiveness

when it was he, himself, who actually waived the claims by failing to file an

amended petition when granted the opportunity to do so.           Accordingly,

Croak is entitled to no relief.6

       Consequently, because we find Croak’s substantive claims asserting

trial counsel’s ineffectiveness are waived for our review, and he has failed to

establish any reason for us to excuse that waiver, we affirm the order

dismissing his PCRA petition.

       Order affirmed.



____________________________________________


6
  We note Croak may still file a federal habeas petition, and argue that his
procedural default should be excused under Martinez based upon PCRA
counsel’s ineffectiveness.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/25/2016




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