Com. v. Ramos, R. ( 2020 )

J-S53034-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RANDY RAMOS :
:
Appellant : No. 1993 EDA 2018
Appeal from the PCRA Order Entered June 11, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003301-2011,
CP-51-CR-0003302-2011, CP-51-CR-0003319-2011,
CP-51-CR-0004898-2011
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RANDY RAMOS :
:
Appellant : No. 844 EDA 2019
Appeal from the PCRA Order Entered June 11, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003301-2011,
CP-51-CR-0003302-2011, CP-51-CR-0003319-2011,
CP-51-CR-0004898-2011
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RANDY RAMOS :
:
Appellant : No. 845 EDA 2019
Appeal from the PCRA Order Entered June 11, 2018
J-S53034-19
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003301-2011,
CP-51-CR-0003302-2011, CP-51-CR-0003319-2011,
CP-51-CR-0004898-2011
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RANDY RAMOS :
:
Appellant : No. 846 EDA 2019
Appeal from the PCRA Order Entered June 11, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003301-2011,
CP-51-CR-0003302-2011, CP-51-CR-0003319-2011,
CP-51-CR-0004898-2011
BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED OCTOBER 19, 2020
Appellant Randy Ramos appeals from the dismissal of his first Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, petitions as untimely.
Appellant challenges the legality of the sentence based on Alleyne v. United
States, 570 U.S. 99 (2013), and claims that his prior counsel abandoned him
by failing to challenge the legality of his sentence. We affirm.
The procedural history of this appeal is as follows. In November 2010,
Appellant was arrested and charged with numerous sexual and related
offenses in four separate cases. On March 1, 2011, the Philadelphia Municipal
Court appointed Benjamin Perez, Esq. (trial counsel) to represent Appellant in
all four cases. Following a preliminary hearing, the municipal court judge held
-2-
J-S53034-19
all of the charges over for proceedings in the court of common pleas. On May
16, 2011, the Commonwealth filed informations in all four cases indicating its
intent to pursue mandatory minimum sentences under numerous statutory
provisions.
Appellant negotiated a plea agreement addressing all four cases. The
agreement called for Appellant to plead no-contest to counts in all four cases
and for the Commonwealth to recommend an aggregate term of ten to twenty
years’ incarceration followed by twenty years’ reporting probation. The parties
further agreed that the trial court would defer sentencing on one count of
indecent assault and have the Sexual Offender Assessment Board (SOAB)
assess Appellant. On June 19, 2012, the trial court accepted Appellant’s pleas
and pursuant to the plea agreement, sentenced Appellant to the
recommended sentence, but continued sentencing on one count of indecent
assault and ordered a SOAB assessment.
On March 10, 2013, following a hearing, the trial court determined that
Appellant was a sexually violent predator and imposed a concurrent sentence
of five years’ probation for the remaining indecent assault count. Appellant
did not appeal the judgments of sentence.1
____________________________________________
1 In light of the deferral of sentencing on the indecent assault count and the
sexually violent predator determination from June 19, 2012, to March 10,
2013, we will use March 10, 2013, as the date of the final sentencing orders.
See generally Commonwealth v. Schrader, 141 A.3d 558, 561 (Pa. Super.
2016) (concluding “that where a defendant pleads guilty and waives a pre-
sentence SVP determination, the judgment of sentence is not final until that
-3-
J-S53034-19
On July 5, 2016, Appellant filed separate pro se PCRA petitions in each
of the four cases.2 The PCRA court appointed counsel to represent Appellant
(PCRA counsel). PCRA counsel filed amended petitions on November 28,
2017, asserting that the trial court imposed an illegal mandatory minimum
sentence of ten to twenty years’ imprisonment. See Am. PCRA Pets.,
11/28/17, at 2. Additionally, Appellant claimed that trial counsel was
ineffective for failing to consult with him about a direct appeal and for failing
to recommend that he challenge his sentence as illegal. See Am. PCRA Pets.,
Mems. of Law at 5.
On May 14, 2018, the PCRA court issued Pa.R.Crim.P. 907 notices of
intent to dismiss Appellant’s petitions as untimely filed. Appellant did not
respond. On June 11, 2018, the PCRA court entered the orders dismissing
Appellant’s petitions.3
____________________________________________
determination is rendered”). We add that the United States Supreme Court
decided Alleyne on June 17, 2013, approximately three months after the
judgments of sentence became final.
2 Appellant titled his pro se PCRA petitions as “nunc pro tunc pursuant to
petitioners responce [sic] to 907 notice.” See Appellant’s Pro Se PCRA Pets.,
7/5/16, at 1. The petitions bore copies of a postage stamp dated July 5, 2016,
and the petitions were docketed in the PCRA court that same day. Cf.
Commonwealth v. Little, 716 A.2d 1287, 1289 (Pa. Super. 1998)
(discussing the prisoner mailbox rule with respect to PCRA petitions).
3 Each of the PCRA court’s orders listed a single trial court docket number for
the respective cases in which the PCRA court dismissed Appellant’s PCRA
petitions. Those orders did not contain a statement of Appellant’s appellate
rights. The record in 3301-2011 contains a second order dated and docketed
on June 12, 2018. That second order indicated that Appellant had thirty days
-4-
J-S53034-19
On July 7, 2018, Appellant filed a pro se notice of appeal listing all four
trial court docket numbers. On July 10, 2018, PCRA counsel subsequently
filed appeals in each of the four cases. PCRA counsel’s notices of appeal were
identical copies of each other. Each of the notices of appeal listed all four trial
court docket numbers.
Appellant, through counsel, subsequently filed and served court-ordered
Pa.R.A.P. 1925(b) statements asserting that Appellant’s sentence was illegal
under Alleyne and trial counsel was ineffective for failing to raise an Alleyne
challenge. The trial court filed a responsive opinion stating that Appellant’s
PCRA petitions were untimely and did not qualify for any exception to the
PCRA time bar. PCRA Ct. Op., 2/12/19, at 6.
On March 15, 2019, this Court issued a rule to show cause why
Appellant’s appeals should not be quashed in light of Commonwealth v.
Walker, 185 A.3d 969 (Pa. 2018). PCRA counsel filed a response indicating
that he electronically filed “the notice of appeal with the form showing all four
CP numbers.” Resp. to Order, 3/20/19, at 2 (formatting altered). Counsel,
however, averred that he “electronically filed under each CP number—
separately.” Id. This Court discharged the order to show cause and referred
the matter to this merits panel.
____________________________________________
“to file an appeal with the Superior Court.” Order, 3301-2011, 6/12/18. The
order did not list the remaining three cases at issue in this appeal.
-5-
J-S53034-19
During the pendency of this appeal, PCRA counsel passed away, and this
Court ordered the appointment of substitute counsel. On August 14, 2020,
substitute counsel entered his appearance in this Court.
Appellant presents the following question for review: “Did the PCRA
[c]ourt err when it dismissed the Amended Petition without holding a
hearing?” Appellant’s Brief at 3.
Before addressing Appellant’s arguments, we consider whether these
appeals are properly before this Court. In Walker, our Supreme Court held
that “where a single order resolves issues arising on more than one docket,
separate notices of appeal must be filed for each case.” Walker, 185 A.3d at
971. The Court explained that “[t]he Official Note to [Pa.R.A.P.] 341 provides
a bright-line mandatory instruction to practitioners to file separate notices of
appeal.” Id. at 976-77. Further, the Court announced that in cases decided
after June 1, 2018, “Rule 341(a) will, in accordance with its Official Note,
require that when a single order resolves issues arising on more than one
lower court docket, separate notices of appeal must be filed.” Id. at 977.
“The failure to do so,” the Court continued, “will result in quashal of the
appeal.” Id. (footnote omitted).
Following our review, we conclude that our decision in Commonwealth
v. Johnson, ___ A.3d ___, 2020 Pa. Super. 164, 2020 WL 3869723 (Pa. Super.
filed July 9, 2020) (en banc) controls. In Johnson, the appellant took appeals
from judgments of sentence entered in four separate dockets by filing similar
notices of appeal in each case. Id. at *1. The Johnson Court concluded:
-6-
J-S53034-19
“Because [the appellant] appealed from four docket numbers and filed four
notices of appeal, [the appellant] has complied with Walker. The fact that
each notice of appeal listed all four docket numbers does not invalidate his
notices of appeal, and we decline to quash his appeals.” Id. at *5.
Instantly, as in Johnson, Appellant separately filed a notice of appeal
in each case. See id. at *4-5. Although the notices of appeal appear similar
and list all four trial court docket numbers, those defects do not require
quashing these appeals. See id. Appellant’s counsel unequivocally asserted
that he separately filed a notice of appeal at each of the four trial court docket
numbers using the electronic filing system, and the separate time stamps
affixed by the clerk of the trial court confirm counsel’s representation. See
id. at *4-5; see also Resp. to Order, 3/20/19, at 2. Accordingly, we decline
to quash these appeals, and we will address the substance of Appellant’s
arguments.4
Appellant asserts: “[H]e had been sentenced in contravention of
[Alleyne. Appellant’s] sentence was not challenged at [the] time of
____________________________________________
4Because we conclude that Appellant complied with the mandates of Walker
and Johnson, we need not consider whether there was a breakdown based
on the PCRA court’s June 12, 2018 order at 3301-2011, which stated that
Appellant was required to file “an appeal” with this Court. See
Commonwealth v. Larkin, ___ A.3d ___, 2020 Pa. Super. 163, 2020 WL
3869710 (Pa. Super. filed July 9, 2020) (en banc) (reaffirming this Court’s
prior decision in Commonwealth v. Stansbury, 219 A.3d 157 (Pa. Super.
2019), in which this Court found a breakdown based on an order that listed
multiple trial court dockets but indicated that the appellant need only file “an
appeal”)).
-7-
J-S53034-19
sentencing by [trial counsel], nor did counsel later advise [Appellant] to file
legal paperwork challenging the mandatory minimum sentence. Counsel was
ineffective.” Appellant’s Brief at 8. Appellant continues:
Trial counsel abandoned [Appellant] and, hence [Appellant’s]
petition was not untimely. However, in that there was an
overwhelming legal issue of importance on the table at the time
of sentencing and immediately thereafter, and that [trial] counsel,
apparently, did not consult with the [Appellant], nor recommend
appealing the illegal sentence, the undersigned would argue that
the [Appellant] was abandoned by prior counsel and, hence, the
sentence should be lawfully under attack at this time. Thus, the
undersigned respectfully requested that the PCRA court consider
the [Appellant’s] petition to have been timely filed and consider
the claim on the merits.
Id. at 9.
The Commonwealth responds that Appellant’s petitions were untimely
and that Appellant did not state any grounds for a time-bar exception under
a theory of attorney abandonment or Alleyne. Id. at 12-14. The
Commonwealth further asserts that even if Appellant stated a time-bar
exception, Appellant failed to establish any merit to his illegal sentencing
claim. Id. at 14-16.
As noted above, the PCRA concluded that Appellant’s petitions were
untimely and did not state an exception to the PCRA time bar. PCRA Ct. Op.
at 5-6. More specifically, the PCRA court reasoned:
The Superior Court has explicitly stated that Alleyne does not
apply retroactively to cases in which the judgment is final.
Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014).
“It is also . . . settled that Alleyne does not invalidate a
mandatory minimum sentence when presented in an untimely
PCRA petition.” Commonwealth v. Ruiz, 131 A.3d 54, 58 (Pa.
-8-
J-S53034-19
Super. 2015) . . . . Similarly, claims of ineffectiveness of counsel
do not satisfy any of the statutory exceptions to the time-bar.
See Commonwealth v. Yarris, 731 A.2d 581, 587 (Pa. 1999)
(noting that the exception relating to interference by government
official specifically excludes defense counsel).
Id. at 6.
Our standard of review for the dismissal of a PCRA petition is limited to
“whether the record supports the PCRA court’s determination and whether the
PCRA court’s decision is free of legal error.” Commonwealth v. Lawson, 90
A.3d 1, 4 (Pa. Super. 2014) (citations omitted). “The PCRA court’s credibility
determinations, when supported by the record, are binding on this Court;
however, we apply a de novo standard of review to the PCRA court’s legal
conclusions.” Commonwealth v. Mitchell, 105 A.3d 1257, 1265 (Pa. 2014)
(citation and quotation marks omitted).
It is well settled that “the timeliness of a PCRA petition is a jurisdictional
[pre-]requisite.” Commonwealth v. Brown, 111 A.3d 171, 175 (Pa. Super.
2015) (citation omitted). “A PCRA petition, including a second or subsequent
petition, shall be filed within one year of the date the underlying judgment
becomes final.” Id. (citation omitted). A judgment is 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 at the expiration of
time for seeking the review.’” Id. (quoting 42 Pa.C.S. § 9545(b)(3)).
-9-
J-S53034-19
Courts may consider a PCRA petition filed more than one year after a
judgment of sentence becomes final only if the petitioner pleads and proves
one of the following three statutory exceptions:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
claim in violation of the Constitution or laws of this Commonwealth
or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown to
the petitioner and could not have been ascertained by the exercise
of due diligence; or
(iii) the right asserted is a constitutional right that was recognized
by the Supreme Court of the United States or the Supreme Court
of Pennsylvania after the time period provided in this section and
has been held by that court to apply retroactively.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). The PCRA further required a petitioner to file
a petition within sixty days of the date the claim could have been presented.
See 42 Pa.C.S. § 9545(b)(2) (subsequently amended eff. Dec. 24, 2018).5
Here, there is no dispute that Appellant’s PCRA petitions were facially
untimely. The trial court sentenced Appellant on all charges by March 10,
2013. Because Appellant did not take a direct appeal, his convictions became
final on April 9, 2013, when the thirty-day period for taking a direct appeal
ended. See 42 Pa.C.S. § 9545(b)(3). Appellant commenced the present
____________________________________________
5 Section 9545(b)(2) was amended on October 24, 2018, effective December
24, 2018, and extended the time for filing from sixty days of the date the
claim could have been first presented to one year. The amendment applies
to claims arising on December 24, 2017, or thereafter. See Act of Oct. 24,
2018, P.L. 894, No. 146, § 3. Because Appellant’s claims arose before
December 24, 2017, the former Section 9545(b)(2) applied to Appellant’s
claim.
- 10 -
J-S53034-19
PCRA proceeding by filing his pro se PCRA petitions on July 5, 2016, more
than two years after the one-year deadline for filing a facially timely PCRA
petition expired. See Brown, 111 A.3d at 175; see also 42 Pa.C.S. §
9545(b)(1). Therefore, we proceed to examine whether Appellant stated an
exception to the PCRA time bar.
To the extent Appellant relies on Alleyne as an exception to the PCRA
time bar, we note that the new constitutional right exception under Section
9545(b)(1)(iii) has two requirements: (1) “the right asserted is a
constitutional right that was recognized by the Supreme Court of the United
States or the Supreme Court of Pennsylvania after the time provided in this
section,” and (2) “the right ‘has been held’ by ‘that court’ to apply
retroactively.” Miller, 102 A.3d at 994 (citation omitted and formatting
altered). The Miller Court explained that “a new rule of constitutional law is
applied retroactively to cases on collateral review only if the United States
Supreme Court or our Supreme Court specifically holds it to be retroactively
applicable to those cases.” Id. at 995 (citations omitted).
Our Supreme Court has held that the right recognized in Alleyne “does
not apply retroactively to cases pending on collateral review . . . .”
Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016). Therefore,
Alleyne will not provide a basis for PCRA relief when Alleyne was decided
after a petitioner’s sentence became final. See id.
Instantly, as noted above, Appellant’s judgments of sentence became
final no later than April 9, 2013, more than two months before the United
- 11 -
J-S53034-19
States Supreme Court decided Alleyne. Because the Pennsylvania Supreme
Court has held that Alleyne does not apply retroactively on collateral review,
Appellant cannot invoke the new constitutional right exception. 6 See 42
Pa.C.S. § 9545(b)(1)(iii); Washington, 142 A.3d at 820; Miller, 102 A.3d at
994-95. Accordingly, we discern no error in the PCRA court’s ruling that
Appellant failed to establish a time-bar exception based on Alleyne. See
Mitchell, 105 A.3d at 1265; Lawson, 90 A.3d at 4.
To the extent Appellant asserts that trial counsel abandoned him on
direct appeal, we initially note the general rule that claims of ineffective
assistance of counsel will not “save an otherwise untimely petition for review
on the merits.” Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785
(Pa. 2000) (citations omitted). However, our Supreme Court has recognized
that counsel’s abandonment of a client may constitute a previously unknown
fact under Section 9545(b)(1)(ii). See Commonwealth v. Bennett, 930
A.2d 1264, 1274 (Pa. 2007); see also Commonwealth v. Peterson, 192
A.3d 1123, 1129 (Pa. 2018) (distinguishing abandonment from ineffectiveness
claims on appeal based on complete versus partial deprivations of appellate
review).
____________________________________________
6 We acknowledge that in Commonwealth v. DiMatteo, 177 A.3d 182, 191
(Pa. 2018), our Supreme Court also recognized Washington does not apply
when “relief [was] sought in a timely PCRA petition and the judgment of
sentence was not final when Alleyne was announced.” DiMatteo, 177 A.3d
at 191. However, as noted above, Appellant’s judgment of sentence became
final after Alleyne was announced.
- 12 -
J-S53034-19
To establish the timeliness exception in Section 9545(b)(1)(ii) based on
a previously unknown fact, a petitioner must
demonstrate he did not know the facts upon which he based his
petition and could not have learned those facts earlier by the
exercise of due diligence. Due diligence demands that the
petitioner take reasonable steps to protect his own interests. A
petitioner must explain why he could not have learned the new
fact(s) earlier with the exercise of due diligence. This rule is
strictly enforced.
Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015) (citations
omitted).
Here, even assuming Appellant has stated a claim of abandonment
rather than ineffective assistance of counsel,7 Appellant did not allege any
facts suggesting that he exercised due diligence in discovering and raising a
claim that trial counsel abandoned him for the purpose of a direct appeal. See
Bennett, 930 A.2d at 1274; Brown, 111 A.3d at 176; see also 42 Pa.C.S. §
9545(b)(1)(ii). Therefore, Appellant’s assertion of abandonment as an
exception to the PCRA time bar under Section 9545(b)(1)(ii) must fail.
In sum, our review confirms that the record and law support the PCRA
court’s ruling that Appellant’s PCRA petitions were untimely filed and that no
____________________________________________
7 To the extent Appellant asserts that trial counsel should have consulted with
him regarding a possible Alleyne claim, it bears reiterating that the United
States Supreme Court decided Alleyne after the time for appealing
Appellant’s judgments of sentences expired. Our Supreme Court has stated
that “counsel cannot be deemed ineffective for failing to anticipate a change
in the law.” Commonwealth v. Hughes, 865 A.2d 761, 810 (Pa. 2004)
(citation omitted). Therefore, Appellant’s claim of ineffective assistance of
counsel based on the failure to consult regarding a direct appeal based on
Alleyne would also fail.
- 13 -
J-S53034-19
statutory exception applied. Therefore, we affirm. See Mitchell, 105 A.3d
at 1265; Lawson, 90 A.3d at 4.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/19/20
- 14 -