Com. v. Krol, J. ( 2016 )

J-S45013-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN LEROY KROL,
Appellant No. 1288 WDA 2015
Appeal from the PCRA Order of July 27, 2015
In the Court of Common Pleas of Bedford County
Criminal Division at No(s): CP-05-CR-0000090-2011
BEFORE: OLSON, DUBOW AND PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED JULY 21, 2016
Appellant, John Leroy Krol, appeals from the order entered on July 27,
2015 dismissing his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon careful review, we affirm.
We briefly summarize the facts and procedural history of this case as
follows. In March 2012, Appellant pled guilty to 12 criminal offenses related
to his assault and attempted murder of a female minor. On direct appeal to
this Court, Appellant argued, inter alia, that the trial court erred by refusing
to permit the withdrawal of his guilty plea.1 See Commonwealth v. Krol,
82 A.3d 1062 (Pa. Super. 2013) (unpublished memorandum). In that
____________________________________________
1
Appellant’s direct appeal raised this claim via a brief filed pursuant to
Anders v. California, 386 U.S. 738 (1967).
*Retired Senior Judge assigned to the Superior Court.
J-S45013-16
appeal, Appellant alleged that the trial court erred when it denied his motion
to withdraw his guilty plea and then accepted an involuntary, unknowing,
and unintelligent plea. Id. at 5-6. On July 11, 2013, this Court denied
relief and affirmed Appellant’s judgment of sentence in an unpublished
memorandum. Id. at 8. On March 11, 2014, Appellant filed a pro se PCRA
petition, alleging, inter alia, that he “was misled [and] tricked into a guilty
plea in [sic] which [Appellant] did not want. [Appellant] wanted to proceed
with [a] plea of not guilty by reason of insanity.” PCRA Petition, 3/6/2014,
at 4, ¶ 13. The petition did not allege ineffective assistance of counsel. On
April 4, 2014, the PCRA court appointed PCRA counsel to represent
Appellant. PCRA counsel did not file an amended petition. The PCRA court
held a hearing on July 15, 2015, but did not hear any evidence. On July 27,
2015, the PCRA court entered an order denying Appellant relief, on the
grounds that the validity of Appellant’s claim was previously litigated on
direct appeal. This timely appeal followed.2
On appeal, Appellant presents one question for our review:
I. Whether the [PCRA] court erred in not holding an
evidentiary hearing on [] Appellant’s PCRA petition?
Appellant’s Brief at 6 (complete capitalization omitted).
____________________________________________
2
Appellant and the PCRA court complied with Rule 1925 of the Pennsylvania
Rules of Appellate Procedure.
-2-
J-S45013-16
On appeal, Appellant argues that “[b]y denying [] Appellant the
opportunity to testify and make a record as to why he believed his guilty
plea was unlawfully induced,” he could not meet his burden to show trial
counsel rendered ineffective assistance in representing Appellant. Id. at 12.
As such, Appellant contends the PCRA court erred by denying relief based
upon previous litigation. Id.
Our Supreme Court determined:
Our standard of review on appeal from the denial of PCRA
relief limits us to examining whether the ruling of the PCRA
court is supported by the record and free of legal error.
Under the PCRA, appellant bears the burden of proving by a
preponderance of the evidence that his conviction or
sentence resulted from a violation recognized in 42 Pa.C.S.
§ 9543(a)(2). Appellant must further demonstrate that the
issues he pursues have not been previously litigated or
waived. Id. § 9543(a)(3). An issue will be deemed
previously litigated pursuant to the PCRA if the highest
appellate court in which the petitioner was entitled to review
as a matter of right has ruled on its merits. A claim will be
deemed waived under the PCRA “if the petitioner could have
raised it but failed to do so before trial, at trial, ... on appeal
or in a prior state post conviction proceeding.” 42 Pa.C.S.
§ 9544(b).
* * *
[[C]ollateral claims of trial counsel ineffectiveness deriving
from an underlying claim of error that was litigated on direct
appeal cannot automatically be dismissed as “previously
litigated.” Rather, Sixth Amendment claims challenging
counsel's conduct at trial are analytically distinct from the
foregone claim of trial court error from which they often
derive, and must be analyzed as such. To succeed on a
claim of counsel ineffectiveness, of course, the defendant
must rebut the presumption of competence and
demonstrate both ends of the performance and actual
prejudice test outlined in Strickland v. Washington, 466
-3-
J-S45013-16
U.S. 668 (1984) and Commonwealth v. Pierce, 527 A.2d
973 (Pa. 1987).
Commonwealth v. Puksar, 951 A.2d 267, 271, 274 (Pa. 2008) (some case
citations omitted).
Our Supreme Court has previously determined:
[I]t is settled law that a [PCRA] petitioner must plead and
present argument regarding trial counsel's conduct.
Specifically, [the] petitioner must assert that the claim is of
arguable merit, that counsel had no reasonable trial
strategy to pursue the chosen course of action, and that but
for the act or omission in question, the outcome of the
proceeding would have been different. If the petitioner has
failed to make this pleading or presentation to the court, he
has not preserved his claim.
On the other hand, when the petitioner has pled and
presented trial counsel's ineffectiveness pursuant to [the
three-prong test above, an appellate court] will review the
claim to determine whether he has proved trial counsel's
ineffectiveness. It is the petitioner's burden to prove all
three prongs of the ineffectiveness test.
Commonwealth v. Rush, 838 A.2d 651, 657 (Pa. 2003).
In his PCRA petition, Appellant baldly claimed that he “was misled
[and] tricked into a guilty plea[, because he] wanted to proceed with the
plea of not guilty by reason of insanity.” PCRA Petition, 3/6/2014, at 4, ¶
13. However, in that PCRA petition, Appellant did not plead and prove the
three prongs of the test for counsel ineffectiveness with regard to his guilty
plea. In fact, the PCRA petition does not mention counsel at all. Hence, we
conclude that Appellant failed to preserve an ineffectiveness claim for
purposes of appellate review. See Rush, 888 A.2d at 657. Moreover,
-4-
J-S45013-16
Appellant’s effort to raise an ineffectiveness claim for the first time on appeal
is unavailing. “Issues not raised in the lower court are waived and cannot be
raised for the first time on appeal.” Pa.R.A.P. 302(a). Thus, Appellant
waived his derivative claim alleging that plea counsel was ineffective.
Turning now to Appellant’s freestanding challenge to the validity of his
guilty plea, our review of the certified record in this matter reveals that this
Court considered the merits of this claim in the context of Appellant’s direct
appeal. See Commonwealth v. Krol, 82 A.3d 1062 (Pa. Super. 2013)
(unpublished memorandum) at 5. At that time, we determined that
Appellant’s guilty plea challenge was wholly frivolous. Id. at 8. Because
this Court reviewed the merits of Appellant’s plea challenge during the
course of direct review, the PCRA court did not err in dismissing Appellant’s
current PCRA petition as previously litigated.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/21/2016
-5-