Com. v. Ruiz-Mayo, R. ( 2015 )

J-S53032-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RENE RUIZ-MAYO, :
:
Appellant : No. 435 MDA 2015
Appeal from the PCRA Order entered on February 4, 2015
in the Court of Common Pleas of Lancaster County,
Criminal Division, No(s): CP-36-CR-0000024-2012;
CP-36-CR-0005678-2011; CP-36-CR-0005694-2011
BEFORE: DONOHUE, OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 24, 2015
Rene Ruiz-Mayo (“Ruiz-Mayo”) appeals, pro se, from the Order
dismissing his second Petition for relief filed pursuant to the Post Conviction
Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On April 3, 2012, Ruiz-Mayo, represented by John E. Churchville,
Esquire (”Attorney Churchville”), entered a negotiated guilty plea to a
variety of crimes.1 The trial court accepted the negotiated plea and, on the
1
Ruiz-Mayo pled guilty to three separate docket numbers. At docket
number 5694-2011, Ruiz-Mayo pled guilty to one count of criminal attempt
(homicide), four counts each of first-degree aggravated assault and second-
degree aggravated assault, one count of firearms without license, and two
counts of recklessly endangering another person. At docket number 5678-
2011, Ruiz-Mayo pled guilty to one count each of firearms without license
and receiving stolen property. At docket number 24-2012, Ruiz-Mayo pled
guilty to one count each of delivery of cocaine and criminal use of a
communication facility.
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same date, imposed an aggregate prison sentence of twenty-five to fifty
years. Ruiz-Mayo did not file a direct appeal.
Ruiz-Mayo filed his first PCRA Petition on June 25, 2012. The PCRA
court appointed Christopher P. Lyden, Esquire (“Attorney Lyden”), as Ruiz-
Mayo’s counsel. Counsel filed a Turner/Finley2 no-merit letter and Petition
to Withdraw. The PCRA court issued a Pa.R.Crim.P. 907 Notice of intent to
dismiss the petition, and Ruiz-Mayo did not file a response. The PCRA court
granted Attorney Lyden’s Petition to Withdraw and dismissed the PCRA
Petition on March 21, 2013. Ruiz-Mayo did not file a Notice of Appeal.
Ruiz-Mayo filed the instant PCRA Petition on July 10, 2014. The PCRA
court appointed Vincent J. Quinn, Esquire (“Attorney Quinn”), as Ruiz-Mayo’s
counsel. Attorney Quinn filed a Turner/Finley no-merit letter and Petition
to Withdraw. The PCRA court issued a Pa.R.Crim.P. 907 Notice of intent to
dismiss the Petition, and Ruiz-Mayo did not file a response. Thereafter, the
PCRA court granted Attorney Quinn’s Petition to Withdraw and dismissed the
PCRA Petition. Ruiz-Mayo filed a timely Notice of Appeal.
On appeal, Ruiz-Mayo raises the following questions for our review:
1. Whether [Attorney] Churchville[] provided ineffective
assistance of counsel during the guilty plea and sentencing
phase, where [he] failed to file any post-sentencing motions on
behalf of [Ruiz-Mayo,] [c]hallenging that [Ruiz-Mayo] was
improperly sentenced to multiple inchoate crimes, and [that] the
[trial] court [erred in] allowing the charge of attempted homicide
to be amended to the original Information[?]
2
Commonwealth v Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 230 (Pa. Super. 1988) (en banc).
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2. Whether [Attorney] Lyden[] provided ineffective assistance of
counsel to [Ruiz-Mayo], when [Attorney] Lyden was assigned to
[Ruiz-Mayo’s] timely filed[] [first PCRA Petition], which was
docketed in the Clerk of Court’s Office for Lancaster County[] on
June 25, 2012[?]
3. Whether [Attorney] Quinn[] provided ineffective assistance of
counsel, where [Attorney] Quinn[] was appointed to represent
[Ruiz-Mayo for his second PCRA Petition] Motion for Post-
Conviction Relief, and sought to withdraw from the case without
perfecting [Ruiz-Mayo’s] claims on the [second PCRA Petition?]
4. Whether all appointed counsels[’] ineffective representation of
[Ruiz-Mayo] denied [Ruiz-Mayo] the opportunity to fairly present
the claims[,] which were ripe for appellate review[,] to the [trial]
court on a Post-Conviction Motion/Petition[?]
5. Whether the compiled acts of all assigned counsel[]
constitute[] an exception to § 9545(b)(1)[] “Time For Filing
Petition[,]” [as the] acts of all assigned and appointed counsel
resulted in a substantial waiver and denial of [Ruiz-Mayo’s]
constitutional rights[?]
Brief for Appellant at 3-4 (unnumbered) (capitalization and emphasis
omitted).
We review an order dismissing a petition under the PCRA
in the light most favorable to the prevailing party at the PCRA
level. This review is limited to the findings of the PCRA court
and the evidence of the record. We will not disturb a PCRA
court’s ruling if it is supported by evidence of record and is free
of legal error.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
Under the PCRA, any PCRA petition, “including a second or subsequent
petition, shall be filed within one year of the date that the judgment
becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence
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becomes final “at the conclusion of direct review, including discretionary
review in the Supreme Court of the United States and the Supreme Court of
Pennsylvania, or the expiration of time for seeking review.” Id.
§ 9545(b)(3). The PCRA’s timeliness requirements are jurisdictional in
nature and a court may not address the merits of the issues raised if the
PCRA petition was not timely filed. Commonwealth v. Albrecht, 994 A.2d
1091, 1093 (Pa. 2010).
Here, Ruiz-Mayo’s judgement of sentence became final on May 3,
2012, upon the expiration of the thirty-day period for filing a direct appeal of
his conviction. See 42 Pa.C.S.A. § 9545(b)(3). Ruiz-Mayo had until May 3,
2013, to file a timely PCRA petition. However, Ruiz-May did not file the
instant Petition until July 10, 2014, which is beyond the one-year timeliness
requirement for filing a PCRA petition.
However, we may address an untimely PCRA petition where the
appellant pleads and proves one of three statutory exceptions: (i) the failure
to raise the claim was the result of government interference; (ii) the facts of
the new claim were unknown to the petitioner and could not have been
discovered with due diligence; or (iii) the right asserted is a constitutional
right recognized by the United States Supreme Court or the Pennsylvania
Supreme Court after the time period provided in the section and has been
held to apply retroactively. 42 Pa.C.S.A. § 9545(b)(1)(i-iii). Any PCRA
petition invoking one of these exceptions must be filed within sixty days of
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the date the claim could have been presented. Id. § 9545(b)(2); Albercht,
994 A.2d at 1094.
Here, Ruiz-Mayo invokes the newly-discovered facts exception at 42
Pa.C.S.A. § 9545(b)(1)(ii), by claiming his counsel abandoned him. Brief for
Appellant at 26 (unnumbered). Ruiz-Mayo does not fulfill the requirements
of section 9545(b)(1)(ii) because he knew his counsel could withdraw at any
time. Further, Ruiz-Mayo does not demonstrate that he filed the instant
Petition within 60 days of the discovery of an unknown fact. Accordingly,
Ruiz-Mayo failed to meet the requirements of the second timeliness
exception, and we cannot address his claims.
Moreover, Ruiz-Mayo raises various ineffective assistance of counsel
claims. Brief for Appellant at 9-31 (unnumbered). However, ineffective
assistance claims do not implicate an exception under section 9545(b)(1).
See Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005)
(stating that “allegations of ineffective assistance of counsel will not
overcome the jurisdictional timeliness requirements of the PCRA.”).3 Thus,
the PCRA court properly dismissed Ruiz-Mayo’s PCRA Petition.4
3
Ruiz-Mayo raises various claims regarding Attorney Lyden’s Turner/Finley
no-merit letter. However, upon our review, Attorney Lyden fulfilled all of the
requirements of Turner/Finley. See PCRA Court Opinion, 5/1/15, at 2-3.
Moreover, Ruiz-Mayo did not raise his ineffective assistance claims regarding
Attorney Lyden in a response to the PCRA court’s Pa.R.Crim.P. 907 Notice of
intent to dismiss the first Petition. See Ford, 44 A.3d at 1198. Similarly,
Ruiz-Mayo did not raise his ineffective assistance claims regarding Attorney
Quinn in a response to the PCRA court’s Pa.Crim.P. 907 Notice of intent to
dismiss the instant Petition. See id.-5-
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/2015
4
Ruiz-Mayo’s claim that the PCRA court erred in dismissing his PCRA
Petition, without first holding an evidentiary hearing, is without merit.
“[T]he right to an evidentiary hearing on a PCRA petition is not absolute, and
the PCRA court may decline to hold a hearing if the petitioner’s claims are
patently frivolous with no support in either the record or other evidence.”
Commonwealth v. Garcia, 23 A.3d 1059, 1066 n.9 (Pa. Super. 2011). In
this case, where Ruiz-Mayo filed an untimely PCRA Petition and did not plead
and prove an exception to the timeliness requirement, we conclude that the
PCRA court did not abuse its discretion in declining to hold an evidentiary
hearing. See id.-6-