J-S72039-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,          :   IN THE SUPERIOR COURT OF
                                       :         PENNSYLVANIA
               Appellee                :
                                       :
         v.                            :
                                       :
DEAN MARTIN KAWCHAK,                   :
                                       :
               Appellant               :
                                       : No. 849 WDA 2014

             Appeal from the PCRA Order Entered May 7, 2014
              in the Court of Common Pleas of Cambria County
          Criminal Division at No(s): CP-11-CR-0000873-2011 and
                          CP-11-CR-0000875-2011

BEFORE: BENDER, P.J.E., SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:               FILED DECEMBER 15, 2014

     Dean Martin Kawchak (Appellant) appeals from the order entered on

May 7, 2014, dismissing his petition under the Post Conviction Relief Act

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

     On May 29, 2012, Appellant entered open guilty pleas to several

charges at several docket numbers. Relevant to this appeal, Appellant pled

guilty to criminal trespass and theft by unlawful taking. He was sentenced

to serve 18 to 84 months’ incarceration for criminal trespass and a

consecutive period of 18 to 60 months’ incarceration for theft by unlawful

taking, resulting in an aggregate term of 3 to 12 years’ incarceration.

Appellant timely filed an appeal to this Court, and his judgment of sentence

was affirmed on October 2, 2013. Commonwealth v. Kawchak, 87 A.3d



* Retired Senior Judge assigned to the Superior Court.
J-S72039-14

873 (Pa. Super. 2013) (unpublished memorandum). Appellant did not file a

petition for allowance of appeal to our Supreme Court.

      On January 3, 2014, Appellant timely filed a pro se PCRA petition.

Counsel was appointed, an amended petition was filed, and an evidentiary

hearing was held. On May 7, 2014, the PCRA court denied Appellant’s PCRA

petition. Appellant timely filed a notice of appeal, as well as a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925.

      On appeal, Appellant raises two issues. First, he contends the PCRA

court erred in finding that “Appellant entered a knowing, willing and

competent plea.” Appellant’s Brief at 3. Appellant also argues that the PCRA

court erred “in finding that the Appellant’s prior counsel was not ineffective

in failing to file a Motion to Recuse the Trial Judge.” Id.

      “On review of orders denying PCRA relief, our standard is to determine

whether the PCRA court's ruling is free of legal error and supported by the

record.”   Commonwealth v. Boyer, 962 A.2d 1213, 1215 (Pa. Super.

2008).

      Appellant first contends that he is entitled to relief under the PCRA

because “he was never properly advised of the range of his sentences prior

to entering his plea.” Appellant’s Brief at 7. Appellant asserts that he “would

not have entered his plea if he had been advised of the actual range of

sentence by [plea] counsel.” Id.




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        “Allegations that counsel misadvised a criminal defendant in the plea

process are properly determined under the ineffectiveness of counsel

subsection of the PCRA [42 Pa.C.S. § 9543(a)(2)(ii)] not the section

specifically    governing   guilty   pleas      [42    Pa.C.S.   §   9543(a)(2)(iii)].”

Commonwealth v. Lynch, 820 A.2d 728, 730 n.2 (Pa. Super. 2003).

               To establish a claim of ineffective assistance of counsel, a
        defendant must demonstrate three things: that the underlying
        claim has arguable merit, that counsel's performance was not
        reasonably designed to effectuate the defendant's interests, and
        that counsel's unreasonable performance prejudiced the
        defendant. [T]he voluntariness of [the] plea depends on whether
        counsel’s advice was within the range of competence demanded
        of attorneys in criminal cases.

Id. at 733 (quotation marks and citations omitted). “[W]ith regard to the

prejudice prong, where an appellant has entered a guilty plea, the appellant

must demonstrate ‘it is reasonably probable that, but for counsel’s errors, he

would     not   have   pleaded   guilty      and      would   have   gone   to   trial.’”

Commonwealth v. Timchak, 69 A.3d 765, 770 (Pa. Super. 2013) (quoting

Commonwealth v. Rathfon, 899 A.2d 365, 370 (Pa. Super. 2006)).

        Appellant’s plea counsel testified at the evidentiary hearing.               He

testified that Appellant was originally facing nine felonies, and the plea offer

accepted by Appellant had him pleading guilty to just one felony. Counsel

further testified that he advised Appellant about sentencing ranges.

        I told him what the ranges were. I suggested to him that it
        would be up to the Judge to make the determination of the
        sentence he would receive. I said that the end result, you are
        pleading to one felony as opposed to if you went to trial and



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      were convicted of eight or nine, I forget how many it was.         I
      said, you know, this is a gift.

N.T., 2/18/2014, at 5.

      Counsel also testified that he went “over the [sentencing] guidelines

with [Appellant].” Id. at 6. Counsel stated that he “spoke with [Appellant]

many times about potential ranges and what he could get and could not get

on this case.” Id. at 9. In the end, Appellant was sentenced to consecutive

sentences in the standard range.        In contrast, Appellant testified that

counsel never discussed possible sentencing ranges with him. Id. at 21.

      The PCRA court found the testimony of plea counsel to be credible.

See PCRA Court Opinion, 5/7/2014, at 5 (“The Court finds credible [plea

counsel’s] testimony[.]”).   The PCRA court also concluded that Appellant

“was aware of the maximum sentence that could be imposed, knew the

[PCRA court] could impose either consecutive or concurrent sentence[s] and

knew that there was no agreement as to what sentence would be imposed.”

Id. “The law is clear that we are bound by the credibility determinations of

the PCRA court, where such findings have support in the record.”

Commonwealth v. Clark, 961 A.2d 80, 87 (Pa. 2008). We therefore

conclude that Appellant has failed to demonstrate that his guilty plea

resulted from ineffective assistance of counsel, and he is not entitled to relief

on this basis.

      Appellant’s second claim on appeal is that his plea counsel was

ineffective for failing to file a motion to recuse Judge Krumenacker, the


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judge to whom Appellant was assigned for his plea and sentencing.

Appellant argues that he expressed concerns about Judge Krumenacker’s

bias against him to plea counsel, and plea counsel was ineffective in failing

to file a motion for Judge Krumenacker’s recusal. Appellant’s Brief at 14-16.

      “A judge is not automatically disqualified from hearing a case merely

because he has presided over prior cases involving the same defendant.

However, if circumstances exist showing a continuing or recurring bias

against a particular defendant or a class of cases, the trial judge should be

disqualified.”   Commonwealth v. Bryant, 476 A.2d 422, 427 n.1 (Pa.

Super. 1984).

      PCRA counsel questioned Appellant about Judge Krunemacker’s bias

against him during the PCRA hearing, as follows.

             [Appellant:] Well, first of all, as soon as I came in and
      seen Mr. Krumenacker, I had Leahey the whole time, I came in
      and the first words out of my mouth when I talked to [plea
      counsel], I can’t go in front of Mr. Krumenacker, we have a
      conflict of interest.

            [Counsel:] When was this?

            [Appellant:] As soon as I came in, as soon as he came up
      to talk to me and the first time I came in Krumenacker’s room
      here, that’s when it was.

            [Counsel:] Was it when you were entering your plea?

            [Appellant:] It was for entering my plea.

            [Counsel:] And why didn’t you want Judge Krumenacker
      to preside?




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             [Appellant:] Because me and him had a conflict before,
      and I just saw a problem. I didn’t want a problem, the problem
      is right now. I didn’t want no problem, this way there would be
      no if, ands, or buts about it. If I didn’t go in front of him, there
      would be no problem.

            [Counsel:] Can you be a little bit specific about what the
      prior problem was?

             [Appellant:] Well, I went in front of him for two DUI’s
      [sic], the first and second, and the first one, he goes, I promise
      you will get more than the recommend[ed] sentence and the
      same with the second one.

            Then there was a problem with my sentencing, concurrent
      or consecutive, and he wouldn’t rule on it, and I made it up into
      the Superior Court and they sent a letter saying do something
      about it or we will at your expense. And I’m thinking, okay, I
      am not going in front of this guy again because he would be
      pissed off about that.

            [Counsel:] Do you recall when these DUI’s [sic] occurred?

            [Appellant:] Twenty years [ago].

N.T., 2/18/2014, at 16-17.

      Plea counsel also testified about this incident.   Plea counsel testified

that he recalled Appellant expressing concerns about appearing in front of

Judge Krumenacker, and plea counsel was “99 percent sure” that he spoke

to Judge Krumenacker about it. Id. at 10. Plea counsel testified that he did

not file a motion for Judge Krumenacker to recuse because the judge

“assured [him] there was no problem[.]” Id. at 11.        In fact, plea counsel

testified that Judge Krumenacker did not recall Appellant. Id.

      The PCRA court, after reviewing the Superior Court docket, found that

Judge Krumenacker imposed a sentence upon Appellant in a DUI case from


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1996. The appeal was dismissed by this Court because counsel for Appellant

failed to file a brief. That situation does not reasonably show that Judge

Krumenacker maintained a “continuing or recurring bias” against Appellant.

Bryant, supra.            Thus, we agree with the PCRA court that there is no

arguable merit to Appellant’s position. PCRA Court Opinion, 5/7/2014, at 7

(“[Appellant has] failed to establish the [arguable] merit prong where there

is no prior case in which [Judge Krumenacker’s] sentence was reversed or

otherwise altered by the Superior Court.”). “[C]ounsel cannot be ineffective

for failing to raise a meritless claim[.]” Commonwealth v. Buterbaugh, 91

A.3d 1247, 1256 (Pa. Super. 2014) (en banc).

       Accordingly, we conclude that Appellant’s plea counsel was not

ineffective for either of the reasons alleged by Appellant, and we affirm the

order of the PCRA court denying his PCRA petition.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/15/2014




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