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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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 the 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.: FILED 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 counts 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, terroristic 
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threats, theft by unlawful 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 trial, 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 reinstatement 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 ineffective 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, 
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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 claims 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 June 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 ineffectiveness 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, 
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with the benefit of a brief that 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 and 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 effectively 

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 

direct 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; 

supra (noting this Court has expressly distinguished 

between those cases where a PCRA petitioner is 

entitled to a direct appeal nunc pro tunc where 
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prior counsel’s actions, in effect, entirely denied his 

right to a direct appeal, as opposed to a PCRA 

petitioner 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 relief 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 direct 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 merit. 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.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/4/2017