Com. v. Ramos, M. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MANUEL ALEXIS RAMOS :
:
Appellant : No. 513 MDA 2019
Appeal from the PCRA Order Entered March 5, 2019
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0001105-2015,
CP-22-CR-0005529-2016, CP-22-CR-0005643-2016,
CP-22-CR-0006076-2015, CP-22-CR-0006370-2015,
CP-22-CR-0006743-2016
BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED AUGUST 19, 2020
Appellant, Manuel Alexis Ramos, appeals from the March 5, 2019 Order
entered in the Dauphin County Court of Common Pleas dismissing his Petition
filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-
9546, as meritless. With this appeal, Appellant’s counsel has filed an
Application to Withdraw as Counsel and an Anders1 Brief. After careful
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1Anders v. California, 386 U.S. 738 (1967). Although counsel has filed an
Anders Brief, the proper mechanism when seeking to withdraw in PCRA
proceedings is a Turner/Finley letter. See Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc). However, because an Anders brief provides greater
protection to a criminal appellant, we may accept an Anders brief in lieu of a
Turner/Finley no-merit letter. Commonwealth v. Widgins, 29 A.3d 816,
817 n.2 (Pa. Super. 2011); Commonwealth v. Fusselman, 866 A.2d 1109,
1111 n.3 (Pa. Super. 2004).
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review, we affirm the PCRA court’s Order and grant counsel’s Application to
Withdraw.
We glean the facts and procedural history underlying this matter from
the certified record. The Commonwealth charged Appellant with a litany of
offenses following a series of break-ins across multiple jurisdictions, including
Dauphin, Lebanon, and York Counties. On November 29, 2016, Appellant
entered a negotiated guilty plea at Docket Number 1105-2015 to 38 counts of
Burglary, and one count each of Conspiracy to Commit Burglary, Theft by
Unlawful Taking, and Possession of Firearms Prohibited. That same day,
Appellant also entered negotiated guilty pleas at two additional dockets—
Numbers 6370-2015 and 6076-2015—to one count each of Burglary.2
On January 17, 2017, the trial court sentenced Appellant at Docket
Number 1105-2015 to a term of 14 to 30 years’ incarceration, and two
concurrent terms of 2½ to 15 years’ incarceration for his convictions at Docket
Numbers 6370-2015 and 6076-2015.
Also on January 17, 2017, Appellant entered negotiated guilty pleas at
three additional docket numbers. In particular, Appellant pleaded guilty at
Docket Number 5529-2016 to two counts of Burglary and one count of
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2 The Commonwealth had initially charged Appellant with 413 offenses at
these three docket numbers. Pursuant to the negotiated plea agreement, the
Commonwealth withdrew or nolle prossed all but 40 of those charges as
described above.
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Criminal Mischief; at Docket Number 6743-2016 to one count each of
Burglary, Theft by Unlawful Taking, and Criminal Mischief; and at Docket
Number 5643-2016 to six counts of Burglary, and one count each of
Conspiracy to Commit Burglary and Possession of Firearms Prohibited.3 That
same day, the trial court sentenced Appellant to three additional concurrent
terms of 2½ to 15 years’ incarceration.4
Appellant did not file any direct appeals from his Judgments of Sentence.
His Judgments of Sentence, thus, became final on February 16, 2017, upon
expiration of time to file a direct appeal. See Pa.R.A.P. 903(a); 42 Pa.C.S. §
9545(b)(3).
On January 11, 2018, Appellant timely filed pro se the instant PCRA
Petition in which he claimed that his guilty plea had been unlawfully induced,
his plea counsel was ineffective, and his conviction occurred in a tribunal that
lacked jurisdiction. PCRA Petition, 1/11/18, at 2, 4. The PCRA court appointed
counsel who, on May 2, 2018, filed a Supplemental PCRA Petition reasserting
the claims raised in Appellant’s pro se Petition.5 Supplemental PCRA Petition,
5/2/18, at 10-21.
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3In accordance with Appellant’s negotiated guilty plea, the Commonwealth
withdrew or nolle prossed nine other charges.
4 The court, thus, imposed an aggregate sentence of 14 to 30 years’
incarceration for the six docket numbers.
5Counsel also filed a Motion to Modify Appellant’s Sentence at Docket Number
6743-2016 arguing that the court’s sentence was improper because, under
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On January 23, 2019, the court held an evidentiary hearing. On March
5, 2019, it dismissed Appellant’s Petition as meritless.
This appeal followed.6
On August 1, 2019, counsel filed an Anders Brief and, on August 2,
2019, an Application to Withdraw as Counsel, concluding that there were no
non-frivolous issues to be raised on appeal since the PCRA Petition was wholly
without merit. Appellant filed a pro se response.7
Counsel presents three issues in his Anders Brief for our review:
1. Whether the [PCRA] court improperly determined that
Appellant’s guilty plea was not unlawfully induced?
2. Whether the [PCRA] court improperly determined that [plea]
counsel was not ineffective?
3. Whether the [PCRA] court improperly determined that the
conviction did not occur in a tribunal without jurisdiction?
Anders Brief at 7.
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the Sentencing Code, the offense of Theft By Unlawful Taking should have
merged with the offense of Burglary. On September 26, 2018, the trial court
granted the Motion to Modify. The modification did not affect the overall
sentencing structure of the negotiated plea agreement.
6 The PCRA court did not direct Appellant to file a Pa.R.A.P. 1925(b)
Statement.
7In his Response, Appellant asserted that his “counsel’s actions have and are
continuing by having detrimental effects upon My Commercial Affairs” and that
he is “holding him, by My Acceptance for his actions, responsible for the value
concerning the said Regarding” as an “unlawful monopoly and commerce.”
Pro Se Response, 8/9/19, at 1. Appellant stated that he refused to
acknowledge counsel’s “corrupt inter-bar courts of thievery.” Id. Last,
Appellant claimed that his counsel has not been “functioning as the ‘counsel’
guaranteed [to him] by the Sixth Amendment[.]” Id.
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Before we consider Appellant’s arguments, we must review counsel’s
request to withdraw from representation. Pursuant to Turner/Finley,
independent review of the record by competent counsel is required before
withdrawal on collateral appeal is permitted. Commonwealth v. Pitts, 981
A.2d 875, 876 n.1 (Pa. 2009). Counsel is then required to submit a “no merit”
letter (1) detailing the nature and extent of his or her review; (2) listing each
issue the petitioner wished to have reviewed; and (3) providing an explanation
of why the petitioner’s issues were meritless. Id. The court then conducts its
own independent review of the record to determine if the Petition is meritless.
Id. “Counsel must also send to the petitioner: (1) a copy of the ‘no-merit’
letter/brief; (2) a copy of counsel’s petition to withdraw; and (3) a statement
advising petitioner of the right to proceed pro se or by new counsel.”
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (citation
omitted).
Our review of the record indicates that counsel has complied with each
of the above requirements. In addition, he sent Appellant copies of the
Anders Brief and Petition to Withdraw, and advised him of his rights in lieu of
representation. See Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa.
Super. 2011). Since counsel has complied with the Turner/Finley
requirements, we now proceed with our independent review of the record and
the merits of Appellant’s claims.
We review the denial of a PCRA petition to determine whether the record
supports the PCRA court’s findings and whether its Order is otherwise free of
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legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014).
Further, “[t]he PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record.” Commonwealth v.
Johnson, 945 A.2d 185, 188 (Pa. Super. 2008) (citation omitted).
Ineffective Assistance of Counsel
Appellant raises three issues challenging counsel’s stewardship. The law
presumes counsel has rendered effective assistance. Commonwealth v.
Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “[T]he burden of
demonstrating ineffectiveness rests on [A]ppellant.” Id. (citation omitted).
To satisfy this burden, Appellant must plead and prove by a preponderance of
the evidence that: “(1) his underlying claim is of arguable merit; (2) the
particular course of conduct pursued by counsel did not have some reasonable
basis designed to effectuate his interests; and, (3) but for counsel’s
ineffectiveness, there is a reasonable probability that the outcome of the
challenged proceeding would have been different.” Commonwealth v.
Fulton, 830 A.2d 567, 572 (Pa. 2003) (citation omitted). Failure to satisfy
any prong of the test will result in rejection of the appellant’s ineffective
assistance of counsel claim. Commonwealth v. Jones, 811 A.2d 994, 1002
(Pa. 2002).
Guilty Plea
Appellant first claims that he did not enter his pleas knowingly,
intelligently, or voluntarily because plea counsel did not properly explain the
length of his sentence. Anders Brief at 15-16.
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“[A]llegations of ineffectiveness in connection with the entry of a guilty
plea will serve as a basis for relief only if the ineffectiveness caused the
defendant to enter an involuntary or unknowing plea.” Commonwealth v.
Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (citations omitted). “Where the
defendant enters his plea on the advice of counsel, the voluntariness of the
plea depends on whether counsel’s advice was within the range of competence
demanded of attorneys in criminal cases.” Id. at 338-39 (citations omitted).
“The law does not require that the defendant be pleased with the outcome of
his decision to plead guilty: All that is required is that his decision to plead
guilty be knowingly, voluntarily, and intelligently made.” Commonwealth v.
Anderson, 995 A.2d 1184, 1192 (Pa. Super. 2010) (citations omitted).
With respect to the prejudice prong of the ineffectiveness test, the
defendant who entered a guilty plea must demonstrate that “it is reasonably
probable that, but for counsel’s errors, he would not have pleaded guilty and
would have gone to trial.” Commonwealth v. Rathfon, 899 A.2d 365, 370
(Pa. Super. 2006) (citation omitted).
In addressing the voluntariness of Appellant’s guilty plea, the PCRA
court explained that Appellant indicated in his colloquy that: (1) he was aware
of the charges he faced and the maximum punishment he was facing; (2) he
understood the rights that he was giving up; (3) there were no threats or
promises made to him other than those promises contained in the negotiated
plea agreement; and (4) the Commonwealth provided a factual basis for the
charges against Appellant at both the November 29, 2016 and January 17,
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2017 proceedings. It also noted that Appellant’s guilty plea colloquy forms
included, in bold face type, verbiage indicating that “in the absence of a
negotiated plea deal, the court can impose sentences that are consecutive
(meaning one sentence does not begin until the other ends) to each other or
any other sentence or concurrent (meaning all sentences run together at the
same time) or a combination of concurrent and consecutive if there are
multiple counts or multiple dockets.” PCRA Ct. Op., 2/28/19, at 7 (quoting
Guilty Plea Colloquy Forms). Appellant reviewed with his attorney, and
signed, each of the guilty plea colloquy forms and indicated that he understood
them.
In addition, the Notes of Testimony reflect that at both the November
29, 2016 and January 17, 2017 proceedings, the Commonwealth provided a
factual basis for the charges against Appellant, and the court engaged in an
extensive on-the record colloquy with Appellant. At the November 29, 2016
hearing, prior to accepting Appellant’s plea to the agreed-upon charges at the
relevant docket numbers, the court asked Appellant whether he could read,
write, and understand the English language; whether he was satisfied with
plea counsel; whether it was his intention to enter a guilty plea; and whether
he understood he was pleading guilty under an Agreement that called for a
14- to 30-year sentence. Likewise, at the January 17, 2017 proceeding, the
trial court engaged in a similar on-the-record colloquy with Appellant. On both
occasions, Appellant answered these questions in the affirmative. Thus, the
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record supports the PCRA court’s conclusion that Appellant’s pleas were
knowing, intelligent, and voluntary.
In rejecting Appellant’s claim that counsel provided him with erroneous
advice, the PCRA court explained that Appellant admitted that the 14- to 30-
year sentence imposed on him was the exact same sentence his attorney had
informed him he would receive. See N.T., 1/13/19, at 9 (“I understood that
they were sentencing me to 14 to 30 years.”). The court also noted that
Appellant’s counsel explained to Appellant the possible maximum sentences
on the charges against him and that if Appellant chose not to accept the terms
of the negotiated plea agreement, he would potentially receive a longer
sentence than 14 to 30 years of incarceration. Given that Appellant was
originally charged with more than 437 counts across six docket numbers,
including 49 counts of Burglary alone, and could have been subject to, at the
discretion of the court, consecutive sentences, the PCRA court found counsel’s
advice to be accurate, reasonable, and overwhelmingly appropriate. See
PCRA Ct. Op. at 8-9.
Following our review, we conclude that the record supports the PCRA
court’s determination Appellant entered his guilty plea knowingly, intelligently,
and voluntarily, and that plea counsel did not provide ineffective assistance.
Appellant is, therefore, not entitled to relief on this claim.
Mitigating Factor
Appellant next claims that his plea counsel was ineffective for failing to
introduce Appellant’s mental health diagnosis as a mitigation factor and failed
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to aggressively argue that the court should depart from the sentencing
guidelines on that basis.8 Anders Brief at 17.
In addressing this claim, the PCRA court aptly noted that the court
sentenced Appellant pursuant to a negotiated agreement whereby the
Commonwealth withdrew a significant number of felony charges in exchange
for Appellant’s agreement to a particular term of incarceration. PCRA Ct. Op.
at 11. The court placed the terms of the negotiated plea agreement on the
record in Appellant’s presence, including the sentence to which Appellant had
agreed, and Appellant executed written colloquies acknowledging the
agreement.
As the PCRA court opined, “[e]ven if counsel had presented testimony
or made representations of a mental health diagnosis on the part of
[Appellant], the sentence we imposed would not have changed. We
sentenced—and would still have sentenced—[Appellant] to 14 to 30 years [of]
incarceration, because that is the term the Commonwealth and
[Appellant] negotiated and agreed to.” Id. at 12 (emphasis added).
Likewise, with respect to his claim that his counsel was ineffective for
failing to “argue aggressively” at the sentencing hearing for a downward
departure from the sentencing guidelines, the PCRA court opined that “any
request regarding a departure from the Guidelines would have been
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8Appellant admitted that his drug addiction motivated his crime spree. N.T.
Sentencing, 1/17/17, at 14. He never claimed that any other mental health
condition was responsible for his extensive crime spree or that he had received
any mental health diagnosis before or since his arrest.
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irrelevant” because Appellant’s sentence was determined by his plea
agreement with the Commonwealth, to which he willingly assented. Id.
We agree. By virtue of entering a negotiated guilty plea, which was
quite favorable for Appellant, there was no need for his counsel to present any
argument, aggressive or otherwise, about alleged mitigating factors. In sum,
Appellant has not shown that, but for his counsel’s alleged ineffectiveness,
there is a reasonable probability that the outcome of his sentencing would
have been different.
Insufficiency of Evidence
Appellant also baldly claims that his plea counsel was ineffective for
failing to argue that the Commonwealth’s evidence was insufficient. Anders
Brief at 18. As noted above, the Commonwealth provided a factual basis for
the charges against Appellant at both the November 29, 2016 and January
17, 2017 proceedings. By entering a guilty plea, Appellant conceded that the
Commonwealth’s evidence was sufficient to support his conviction. See
Commonwealth v. Rounsley, 717 A.2d 537, 539 (Pa. Super. 1998).
Appellant has not alleged, let alone proved, that but for his counsel’s alleged
ineffectiveness in failing to challenge sufficiency of the Commonwealth’s
evidence, the outcome of these proceedings would have been different.
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In light of the foregoing, the record supports the PCRA court’s conclusion
that Appellant has failed to satisfy any of the prongs of the ineffectiveness
test. These claims are, therefore, meritless.9
Lack of Jurisdiction
In his final issue, Appellant claims that the Dauphin County Court of
Common Pleas lacked jurisdiction to adjudicate the charges arising from the
crimes Appellant committed outside of Dauphin County. Anders Brief at 18.
Appellant asserts that he was prejudiced by the transfer of prosecution from
Lebanon and York Counties to Dauphin County. Id. at 19.
Pa.R.Crim.P. 555 governs the procedure for transferring cases arising
from a single criminal episode that took place in more than one judicial district.
Rule 555(D)(1) provides that, “absent an objection within 10 days of filing,
the court promptly shall order the transfer of proceedings.” Pa.R.Crim.P.
555(D).
Similarly, Rule 130 addresses the issue of venue before charges are
filed. It states, in relevant part:
When charges arising from the same criminal episode occur in
more than one judicial district, the criminal proceeding on all the
charges may be brought before one issuing authority in a
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9 To the extent that Appellant also claims that his counsel was ineffective for
failing to provide him with case discovery and transcripts of his preliminary
hearings, our review indicates that Appellant did not raise this issue in his
PCRA Petition; rather, he raised this issue for the first time at his PCRA
hearing. “Any claim not raised in the PCRA petition is waived and not
cognizable on appeal.” Commonwealth v. Washington, 927 A.2d 586, 601
(Pa. 2007).
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magisterial district within any of the judicial districts in which the
charges arising from the same criminal episode occurred.
Pa.R.Crim.P. 130(A)(3).
The Commonwealth bears the burden of proving venue is proper by a
preponderance of the evidence once a defendant properly raises the issue.
Commonwealth v. Gross, 101 A.3d 28, 33 (Pa. 2014).
Appellant complains specifically about two sets of charges: (1) Burglary,
Conspiracy, and Theft by Unlawful Taking charges initially filed in Lebanon
County on July 22, 2105; and (2) Burglary, Theft by Unlawful Taking, Theft
by Receiving Stolen Property, Possession of a Firearm Prohibited, and Criminal
Trespass charges initially filed on August 5, 2015, in York County. Anders
Brief at 19. In each of these cases, the record reflects that the respective
counties’ district attorneys filed Motions to Transfer Prosecution to Dauphin
County Court of Common Please pursuant to Pa.R.Crim.P. 555. Appellant did
not file any objections to these Motions. Accordingly, the courts of common
pleas in Lebanon and York Counties each issued orders transferring these
cases to the Dauphin County Court of Common Pleas.
As noted above, our review of the certified record indicates that
Appellant did not object within 10 days of filing to the transfer of his charges
to Dauphin County pursuant to Pa.R.Crim.P. 555. Likewise, Appellant did not
raise a challenge to venue before the trial court. There is nothing in the record
to indicate that the district attorneys in the relevant counties failed to comply
with the requirements of Pa.R.Crim.P. 555 and Pa.R.Crim.P. 130 in
consolidating Appellant’s cases in Dauphin County and Appellant has not
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presented any such claim. Moreover, as noted by the PCRA court, contrary to
his bald assertion, Appellant was not prejudiced by the consolidation of his
cases, as it resulted in his ability to pursue and receive a global plea
agreement. See PCRA Ct. Op at 14. Accordingly, Appellant is not entitled to
relief on this claim.
Order affirmed. Petition to Withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/19/2020
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