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Pekular v. Gilmore

United States District Court, W.D. Pennsylvania

August 16, 2017

FRANK PEKULAR, JR., KF-0351, Petitioner,
v.
SUPT. GILMORE, et al., Respondents.

          MEMORANDUM OPINION AND ORDER

          Robert C. Mitchell United States Magistrate Judge.

         Frank Pekular, Jr., and inmate at the State Correctional Institution-Greene- has presented a petition for a writ of habeas corpus. For the reasons set forth below, the petition will be dismissed, and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied.

         Pekular is presently serving a ten to twenty year sentence imposed upon his plea of guilty to charges of third degree murder at No. CP-02-CR-537-2010 in the Court of Common Pleas of Allegheny County, Pennsylvania.[1]

         Following some procedural maneuvers not material here, on September 3, 2013, petitioner filed a "pro se motion for an answer to the 'motion to withdraw guilty plea' filed on October 4, 2011. (Ex. 5 to the answer). The motion was construed as a post-conviction petition. Com. v. Taylor, 65 A.3d, 462, 465 (Pa.Super.2013)("it is well-settled that the PCRA is intended to be the sole means of achieving post-conviction relief."). The petition was subsequently amended and denied on May 12, 2014 (Ex. 13 to the answer). An appeal was filed in the Superior Court in which the issues presented were:

I. Did the lower court err by finding that trial counsel was not ineffective by failing to meet with the appellant and discuss his decision to withdraw his guilty plea, failing to argue the motion to withdraw the guilty plea, failing to argue the motion to withdraw the guilty plea, giving appellant erroneous advise as to the sentence that would be imposed and failing to describe the elements of third degree murder?
II. Was the plea of guilty unlawfully induced by trial counsel? (Ex.16 to the answer)

         On January 5, 2016 the denial of relief was affirmed (Ex. 18 to the answer), and leave to appeal was denied on May 2016 (Ex. 22 to the answer).

         In the present petition, Pekular contends he is entitled to relief on the following grounds:

1. Sixth Amendment violation due to ineffective assistance of counsel. Trial counsel was ineffective for failing to: meet with the defendant and discuss decision to withdraw guilty plea, argue motion to withdraw guilty plea filed by defendant within time limit specified in guilty plea agreement, provide information necessary for a plea to be knowingly and intelligent, file a direct appeal despite being instructed to do so, provide true and correct advice in the context of plea bargaining with respect to the duration of the sentence.
2. Fourteenth Amendment violation because defendant was not afforded due process of law. Due process of law was not afforded when the plea of guilty was unlawfully induced since the defendant did not fully understand the elements/requirements of murder of the third degree (Petition at ¶12).

         Respondents concede that these issues have been exhausted in the state courts and that the instant petition is timely (Answer at pp. 15, 22).

         The background to this prosecution is set forth in the January 5, 2016 Memorandum of the Superior Court:

On November 28, 2009, at approximately 8:00 p.m., Appellant entered the BP filing station and convenience store at 910 Sawmill Run Boulevard in Allegheny County. He approached the counter and purchased a pack of crackers with loose change. Appellant then left the convenience store and walked outside. He paced around the store, returned, and selected another package of crackers.
When Appellant came up to the purchase window, Lucinda Wetzel was the cashier. As Ms. Wetzel opened the drawer to the cash register, Appellant dove underneath a security barrier and unsuccessfully attempted to grab cash from the open register. Appellant then fled outside and attempted to rob Ms. Wetzel. Next, Walter Wetzel chased Appellant and brandished a firearm. If the case had proceeded to trial, the Commonwealth's witnesses were prepared to testify that Mr. Wetzel was acting within the scope of ...

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