J. S08021/17

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

COMMONWEALTH OF PENNSYLVANIA : : IN THE SUPERIOR COURT OF

PENNSYLVANIA
v. : : STEVEN ANDREW ZIRKLE, : No. 752 WDA 2016
: Appellant :

Appeal from th e Order Entered April 22, 2016, in the Court of Common Pleas of Crawford County Criminal Division at Nos. CP

- 20

- CR

- 0000143

- 2009,

CP

- 20

- CR

- 0000147

- 2009

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND SOLANO, J.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FIL ED AUGUST 04, 2017
Steven Andrew Zirkle appeals from the April 22, 2016 order entered in
the Court of Common Pleas of Crawford County that dismissed his second
petition filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541

- 9546, which the PCRA court treated as his first
petition . After careful review, we affirm.
Another panel of this court set forth the following:

The trial court summarized the procedural history of this case:
[Zirkle] was charged at [Case 143] with two count s of burglary, two counts of criminal trespass, and one count of criminal mischief, 18 Pa.C.S. §§ 3502(a), 3503(a)(1)(ii), 3304(a)(1), respectively, and at [Case 147] with one count each of burglary, criminal trespass, terroristicJ. S08021/17

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- threats, theft by unlawfu l taking, and receiving stolen property, id. §§ 3502(a), 3503(a)(1)(ii), 2706, 3921(a), 3925(a), respectively. The two cases were consolidated for trial, at which Zirkle was self

- represented [with stand

- by counsel], and he was convicted on all ten counts. On January 27, 2010, he received an aggregate sentence of ten to twenty years of imprisonment at each case, to be served consecutively, with credit for 403 days of presentence incarceration.
Zirkle filed post

- sentence motions for acquittal, for a new tr ial, and for sentence modification, which were all denied, and judgment of sentence was affirmed on appeal to the Superior Court. A timely filed petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq. , resulted in the reinstateme nt of Zirkle’s right to appeal to the Pennsylvania Supreme Court for discretionary review, but [ allocatur ] was denied on December 27, 2012.

Commonwealth v. Zirkle , 107 A.3d 127, 131 (Pa.Super. 2014) (brackets
in original), appeal denied , 117 A.3d 297 (Pa. 2015).
Appellant then filed his second pro se PCRA petition on or about

June 24, 2013, which the PCRA court treated as his initial petition and
appointed counsel to represent him. In his counseled amended PCRA
petition, Zirkle claimed, inter alia , the i neffective assistance of trial counsel
and appellate counsel. The PCRA court addressed each of the
ineffectiveness claims in its opinion of October 18, 2013. In that opinion,J. S08021/17

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-

the court found merit to appellant’s allegation that appellate counsel was

ineffective in failing to argue on appeal that his three criminal trespass
convictions were erroneously graded as second

- degree, rather than

third

- degree, felonies because entry was made through unlocked doors

without the use of force. The PCRA court vacated its original January 27,
2010 sentence, and resentenced on December 3, 2013. Although the court
had thoroughly addressed any and all of the ineffectiveness of counsel

claims in its October 18, 2013 opinion, it held in abeyance an actual denial

of those cl aims pending the appeal on appellant’s resentence.
On appeal to this court, appellant raised several discretionary aspects
of sentence issues relative to his resentence. This court affirmed appellant’s
judgment of sentence on December 18, 2014; and on Ju ne 17, 2015, our
supreme court denied appellant’s petition for allowance of appeal.
Following remand of the case, the PCRA court, by order, gave notice of
its intent to dismiss all remaining claims pursuant to Pa.R.Crim.P. 907(1) in
appellant’s counseled petition which it had already addressed in its October
2013 opinion. The PCRA court then denied appellant’s petition, and
appellant now appeals that denial.
Unfortunately, appellant has not specifically addressed any issues

within the rubric of ineffecti veness of counsel. Rather, appellant argues:

1. Whether the trial court erred in denying Appellant’s request at the time of his First Amended PCRA proceedings to be permitted to file/re

- file his direct appeal nunc pro tunc ,J. S08021/17

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- with the benefit of a brief tha t was not defective such that this Honorable Court was unable to reach the merits of his arguments?

2. Whether the burden on direct appeal is sufficiently different than it is for a PCRA appeal such that Appellant suffered prejudice by the trial court not permitting him to file/re

- file his direct appeal nunc pro tunc , and, instead, requiring the undersigned to file a Petition for Allowance of Appeal limited to the areas not deemed waived by this Honorable Court?
Appellant’s brief at 3.
Appellant cites an d argues Commonwealth v. Grosella , 902 A.2d
1290 (Pa.Super. 2006), for the proposition that he should have been
permitted to file an entirely new direct appeal because the performance of
original direct appeal counsel was so deficient that he was effective ly
deprived entirely of his right of direct appeal. Unfortunately for appellant,

Grosella is clear in stating:

However, it is also well

- settled that the reinstatement of direct appeal rights is not the proper remedy when appellate counsel perfected a dir ect appeal but simply failed to raise certain claims. See Johnson , supra

. Where a petitioner was not entirely denied his right to a direct appeal and only some of the issues the petitioner wished to pursue were waived, the reinstatement of the petitioner ’s direct appeal rights is not a proper remedy. See Halley , 582 Pa. at 172, 870 A.2d at 801 (noting the significant difference between “failures that completely foreclose appellate review, and those which may result in narrowing its ambit”); Johnson ; supr a (noting this Court has expressly distinguished between those cases where a PCRA petitioner is entitled to a direct appeal nunc pro tunc whereJ. S08021/17

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- prior counsel’s actions, in effect, entirely denied his right to a direct appeal, as opposed to a PCRA petitione r whose prior counsel’s ineffectiveness may have waived one or more, but not all, issues on direct appeal); Commonwealth v. Ginglardi , 758 A.2d 193 (Pa.Super.2000) (indicating that where two of the three issues presented on direct appeal were waived the re lief afforded under Lantzy was unavailable to a PCRA petitioner). In such circumstances, the appellant must proceed under the auspices of the PCRA, and the PCRA court should apply the traditional three

- prong test for determining whether appellate counsel was ineffective.

Grosella , 902 A.2d at 1293

- 1294 (footnotes omitted; emphasis in original).
Appellant raised direct appeal counsel’s alleged deficient performance
in his amended PCRA petition, and the PCRA court addressed the claim.
Additionally, on dir ect appeal, this court did address various issues raised on
appeal, finding some without merit and some not sufficiently presented.
Appellant properly presented these claims to the PCRA court, and that court
thoroughly addressed each issue and found no me rit. We agree with the
PCRA court’s reasoning. Moreover, we could find the issues raised to be
waived for failure to present them in the framework of an ineffective
assistance of counsel analysis. Appellant is not entitled to another direct
appeal nunc pro tunc

. Order affirmed.J. S08021/17

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-

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/4/2017