J-S71044-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MICHAEL R. DORCZUK 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 838 EDA 2019

Appeal from the PCRA Order Entered February 7, 2019

In the Court of Common Pleas of Chester County Criminal Division at 

No(s): CP-15-CR-0000468-2016

BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: Filed: March 23, 2020

Michael R. Dorczuk appeals from the order denying his petition for relief 

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. 

Dorczuk avers that his trial counsel was ineffective. We affirm.

In January 2016, Dorczuk was charged with aggravated indecent assault 

of a child, indecent assault of a person less than 13 years old, and endangering 

the welfare of a child.1 Although Dorczuk’s preliminary hearing was scheduled 

for February 2016, neither Dorczuk nor his counsel attended. Thus, all charges 

were held for trial. However, prior to trial, on August 25, 2016, Dorczuk 

entered into a negotiated guilty plea and the trial court sentenced him to an 

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1 18 Pa.C.S.A. §§ 3125(b), 3126(a)(7), and 4304, respectively.
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aggregate term of 6 to 12 years’ incarceration, plus five years of consecutive 

probation.

2 Dorczuk did not file a direct appeal.

On November 26, 2018, Dorczuk filed the instant timely, counseled, 

PCRA petition. The PCRA court issued Rule 907 notice of its intention to dismiss 

Dorczuk’s petition without a hearing on January 28, 2019. See Pa.R.Crim.P. 

907. After Dorczuk filed a response, the PCRA court issued an order dismissing 

his petition. Dorczuk filed a timely appeal and a Pa.R.A.P. 1925(b) statement. 

The PCRA court filed a responsive order on April 8, 2019, which incorporated 

the court’s reasoning contained in its January 28, 2019 order. On appeal, 

Dorczuk presents the following single issue for our review: “Did the PCRA 

[c]ourt err when it refused to find counsel was ineffective for failing to appear 

at [Dorczuk’s] preliminary hearing, and therefore waiving this critical stage of 

the proceedings?” Dorczuk’s Br. at 2. 

Dorczuk contends that his trial counsel not only failed to attend his 

preliminary hearing but also failed to inform him about the hearing and as a

result, he also did not attend. Accordingly, Dorczuk avers his counsel was per 

se ineffective because he never got the chance to “test” the evidence against 

him prior to his negotiated guilty plea. He further posits that his negotiated 

guilty plea should not preclude him from obtaining relief under the PCRA 

because his trial counsel was ineffective. See 42 Pa.C.S.A. § 9543(a)(2)(ii) 

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2 Following a hearing in August 2017, the trial court entered an order 

designating Dorczuk as a sexually violent predator. However, the trial court 

subsequently vacated this classification via an order dated February 5, 2018. 
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(relief is warranted if a conviction resulted from “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”). We decline to agree.

Our standard of review of the denial of a PCRA petition is limited to 

examining whether the evidence of record supports the court’s determination 

and whether its decision is free of legal error. See Commonwealth v. 

Conway, 14 A.3d 101, 108 (Pa.Super. 2011). 

All constitutionally recognized ineffectiveness claims, including those 

arising where the defendant has pleaded guilty, are cognizable under the 

PCRA. Commonwealth ex rel. Dadario v. Goldberg, 773 A.2d 126, 130

(Pa. 2001); Commonwealth v. Kelley, 136 A.3d 1007, 1012 (Pa.Super. 

2016). We presume that counsel was effective and the petitioner bears the 

burden of proving otherwise. See Commonwealth v. Daniels, 963 A.2d 409, 

427 (Pa. 2009). A petitioner claiming ineffectiveness must thus plead and 

prove three things: (1) the underlying claim has arguable merit, (2) counsel 

had no reasonable basis for the contested action or inaction, and (3) the 

petitioner has sustained prejudice. See Commonwealth v. Washington, 

927 A.2d 586, 594 (Pa. 2007). Prejudice occurs, in the context of a guilty plea, 

only if the ineffectiveness caused the petitioner to enter an involuntary or 

unknowing plea. Commonwealth v. Moser, 921 A.2d 526, 531 (Pa.Super.

2007).
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Here, Dorczuk asserts that we should presume prejudice under United 

States v. Cronic, 466 U.S. 648, 653 (1984). He notes the statement of the 

Court in Cronic that there is a presumption of prejudice “if counsel entirely 

fails to subject the prosecution's case to meaningful adversarial testing....”

See Dorczuk’s Br. at 7; Cronic, 648 U.S. at 659. He then argues, “By 

absenting himself (and his client) from the preliminary hearing, prior counsel 

forfeited Defendant’s right to test the Commonwealth’s evidence.” Id. at 7-8. 

This argument fails. Cronic’s presumption of prejudice only applies 

where the alleged defect “necessarily undermine[s] the reliability of the entire 

criminal proceeding.” Ditch v. Grace, 479 F.3d 249, 256 (3d Cir. 2007) (citing 

United States v. Owen, 407 F.3d 222, 228 (4th Cir. 2005)). Indeed, the 

United States Supreme Court has concluded that although the failure to 

provide the defendant counsel at a preliminary hearing amounted to a 

deprivation of counsel during a “critical stage” of the proceedings, such an 

error is nonetheless subject to harmless error analysis. See Coleman v. 

Alabama, 399 U.S. 1, 9-10, 11 (1970). “[O]nly those ‘Sixth amendment 

violations that pervade the entire proceeding’ can ‘never be considered 

harmless.” Sweeney v. United States, 766 F.3d 857, 860-61 (8th Cir. 2014) 

(quoting Satterwhite v. Texas, 486 U.S. 249, 256 (1998)). Dorczuk’s claim 

of per se prejudice under Cronic fails.

Nor does Dorczuk establish actual prejudice. He makes no claim that his 

counsel’s error caused him to enter an involuntary or unknowing plea. 

Dorczuk’s failure to establish this causal nexus dooms his ineffective 
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assistance of counsel claim. Accordingly, Dorczuk’s single issue on appeal 

warrants no relief and we affirm the PCRA court’s order dismissing his PCRA 

petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/23/20