Com. v. Ring, M.

J-S78038-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MARK M. RING, :
:
Appellant : No. 718 MDA 2014
Appeal from the Order entered on March 18, 2014
in the Court of Common Pleas of Luzerne County,
Criminal Division, No. CP-40-CR-0004097-2006
BEFORE: GANTMAN, P.J., JENKINS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 13, 2015
Mark M. Ring (“Ring”), pro se, appeals 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.
This Court previously set forth the procedural history underlying the
instant appeal as follows:
On July 6, 2006, [Ring] shot and killed Joseph Tarreto. On
March 15, 2007, a guilty plea hearing was held; [Ring] was
represented by Frank W. Nocito, Esq[uire], and Joseph M.
Nocito, Esq[uire (collectively hereinafter referred to as “the
Nocitos”)]. At the inception of the hearing, the trial court
conducted an oral colloquy and reviewed the terms of the written
plea agreement with [Ring]. Thereafter, pursuant to a
negotiated plea agreement, [Ring] pled guilty to one count of
murder in the third degree, 18 Pa.C.S.A. § 2502(c). On April 26,
2007, [Ring] was sentenced to 12 to 24 years of incarceration.
Post-sentence motions were not filed, nor was a direct appeal
filed.
On April 9, 2008, [Ring], acting pro se, filed a timely PCRA
[P]etition alleging that, as a result of [the Nocitos’] ineffective
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assistance, his guilty plea was not knowingly, voluntarily, and
intelligently made. John Pike, Esq[uire (“Attorney Pike”)], was
appointed; no amended petition was filed. On May 28, 2008, a
PCRA hearing was held, via video conference, regarding the
propriety of [Ring’s] guilty plea. [Ring] testified on his own
behalf, and the Commonwealth presented the testimony of [the
Nocitos]. At the conclusion of the hearing, the PCRA court
dismissed the [P]etition, finding no merit to [Ring’s] claims of
ineffective assistance of counsel. Counsel was granted
permission to withdraw, and new counsel, Matthew P. Kelly,
Esq[uire (“Attorney Kelly”)], was appointed. A timely [N]otice of
[A]ppeal was filed [on] June 26, 2008.
Commonwealth v. Ring, 996 A.2d 554 (Pa. Super. 2010) (unpublished
memorandum at 1-2) (citation omitted). This Court affirmed the Order
dismissing Ring’s first PCRA Petition, after which the Supreme Court of
Pennsylvania denied allowance of appeal. See id.,1 appeal denied, 5 A.3d
819 (Pa. 2010).
Relevant to the instant appeal, on March 30, 2009, while Ring’s appeal
concerning his first PCRA Petition was pending with this Court, Ring filed a
second, pro se PCRA Petition. Because of Ring’s pending appeal, the PCRA
court did not rule on the second PCRA Petition.
1
This Court in Ring summarized its holding as follows:
As the record supports the PCRA court’s findings, we agree with
the PCRA court’s determination that [Ring] entered his plea
voluntarily, knowingly, and intelligently, and that the plea was not
the product of ineffective assistance of counsel. … [T]here is
nothing in the record to support [Ring’s] contention that his plea was
coerced, other than his own testimony[,] which was rejected by the
PCRA court ….
Ring, 996 A.2d 554 (unpublished memorandum at 8) (paragraph break
omitted).
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A few years later, on November 14, 2011, Ring filed a pro se amended
second PCRA Petition, and brief in support thereof. There was no further
action in the case, by either Ring or the PCRA court, until October 8, 2013,
when Ring filed a pro se “Motion for Disposition,” requesting that the PCRA
court issue a ruling regarding his second PCRA Petition. In response, the
PCRA court appointed Ring counsel, John Hakim, Esquire (“Attorney
Hakim”). On December 12, 2013, Attorney Hakim filed a “no-merit” letter
and accompanying Petition to Withdraw as counsel, pursuant to the
procedure outlined in Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
In his no-merit letter, Attorney Hakim stated, inter alia, as follows:
[Ring’s second] PCRA [Petition] is filed based upon “the
corruption in Luzerne County” during the time of his guilty plea
and sentencing. [Ring’s] case was not heard by any Judge
implicated in any corruption scandal, nor was [Ring] represented
by an attorney implicated in any corruption scandal. Further, it
is not alleged that his case was in any[] way related to or
effected by the “corruption.”
[Ring’s a]mended PCRA [Petition] and [b]rief assert that,
because of the “corruption,” [Ring’s] guilty plea was not
knowing, voluntary and intelligent. Basically, [Ring] reasserts
the issues raised in [his first] PCRA [Petition]. These issues were
previously litigated before[,] and decided by the Court of
Common Pleas and affirmed by the Superior Court.
No-Merit Letter, 12/12/13.
After review, the PCRA court determined that Attorney Hakim had
complied with the Turner/Finley requirements, and, therefore, permitted
him to withdraw as Ring’s counsel. Shortly thereafter, the PCRA court gave
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Ring Notice, pursuant to Pa.R.Crim.P. 907, of the court’s intention to dismiss
the second PCRA Petition without a hearing. In the Rule 907 Notice, the
PCRA court stated that Ring was not entitled to collateral relief because (1)
Ring’s claims of the Nocitos’ ineffective assistance of counsel, and an
unlawfully induced guilty plea, were previously litigated; and (2) Ring’s
second PCRA Petition was facially untimely and jurisdictionally time-barred.
Ring filed an Objection to the Rule 907 Notice. By an Order entered on
March 18, 2014, the PCRA court dismissed Ring’s second PCRA Petition.
Ring timely filed a Notice of Appeal.
On appeal, Ring, pro se, presents the following issues for our review:
1. … Ring’s [second] amended [PCRA Petition] and supplement
make numerous averments layering claims [concerning
Attorney Pike’s and Attorney Kelly’s] ineffectiveness. Does
Ring adequately demonstrate [that Attorneys Pike and Kelly]
were ineffective in the manner in which they litigated the
claims?
2. … Does a cumulative prejudicial analysis of errors[,] as
averred by Ring[,] provide a basis for relief?
3. Most if not all of former corrupt Judge Mark Ciavarella’s
[“Judge Ciavarella”2] orders have been vacated. Where
Ring takes issue[] with [Attorney] … Kelly[’s] …
ineffectiveness, [should] the [O]rder issued by [] Judge
Ciav[a]rella [] appoint[ing Attorney] Kelly [to represent
Ring] be vacated[?]
4. … [Whether] Ring’s [second] PCRA [P]etition should be
treated as a first PCRA petition[?]
2
Judge Ciavarella, a former Judge of the Luzerne Court of Common Pleas,
was convicted of several crimes, along with his fellow Judge, former Judge
Michael Conahan (“Judge Conahan”), in connection with the infamous “kids
for cash” scandal. In 2009, the Pennsylvania Supreme Court vacated all of
Judge Ciavarella’s adjudications involving children over a five-year period.
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5. … [Does t]he record now support[] Ring’s contention [that]
his plea was not knowingly, voluntarily, and intelligently
entered[?]
6. … Did the [PCRA] court err by claiming, sua sponte, that
Ring has not pled any [of the] exceptions [to the PCRA’s
timeliness requirement in t]his case?
Brief for Appellant at 2-3 (footnote added).3, 4
In reviewing a challenge to an order dismissing a PCRA petition, our
standard of review is “whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error. The PCRA
court’s findings will not be disturbed unless there is no support for the
findings in the certified record.” Commonwealth v. Gandy, 38 A.3d 899,
902 (Pa. Super. 2012) (citations omitted).
Any PCRA Petition that is not filed within one year of the date the
judgment becomes final is time-barred, unless the petitioner has pled and
proven one of the three exceptions to the PCRA’s time limitation set forth in
42 Pa.C.S.A. § 9545(b)(1)(i-iii) (providing that an untimely PCRA petition
may be considered timely if a petitioner alleges and proves (1)
governmental interference with the presentation of his claims; (2) discovery
3
In the interest of clarity, we have redacted some of the language in Ring’s
issues, since it is merely introductory language.
4
We observe that Ring’s Argument section does not correspond with the
issues he has set forth in the Statement of Questions Presented. See
Pa.R.A.P. 2119(a) (stating that “[t]he argument shall be divided into as
many parts as there are questions to be argued ….”); see also Pa.R.A.P.
2116(a) (stating that “[n]o question will be considered unless it is stated in
the statement of questions involved or is fairly suggested thereby.”).
Nevertheless, we will overlook this defect.
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of previously unknown facts which could not have been discovered with due
diligence; or (3) an after-recognized constitutional right given retroactive
application). Here, Ring’s second PCRA Petition, filed in March 2009, is
facially untimely because his judgment of sentence became final more than
one year prior, in May 2007.
Although Ring did not raise any of the exceptions to the PCRA’s time
bar in his second PCRA Petition, in his brief in support of his November 2011
pro se amended second PCRA Petition, he invoked the “after-discovered
facts” exception.5 Accordingly, Ring’s claims on appeal regarding this
exception are properly preserved for our review. See Commonwealth v.
Collins, 957 A.2d 237, 247-48 (Pa. 2008) (holding that the PCRA petitioner
had properly preserved his claim where he raised it before the PCRA court).
Specifically, Ring pled that the convictions concerning Judges Conahan and
Ciavarella constituted unknown facts that excused his late filing. However,
Ring did not attempt to explain how the former judges’ criminal conduct,
which involved only juvenile court cases, had any impact upon his case.6
Indeed, the record supports Attorney Hakim’s assertion in his no-merit letter
that “[Ring’s] case was not heard by any Judge implicated in any corruption
5
In his amended second PCRA Petition, Ring also raised an ineffectiveness
claim against the Nocitos and all of his PCRA counsel.
6
Ring’s only allegation of the former judges’ involvement in his case is that,
in June 2008, Judge Ciavarella appointed Attorney Kelly to represent Ring in
connection with his appeal from the dismissal of the first PCRA Petition.
Aside from this action, our review discloses no involvement by either Judge
Conahan or Judge Ciavarella in Ring’s case.
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scandal, nor was [Ring] represented by an attorney implicated in any
corruption scandal.” No-Merit Letter, 12/12/13. Accordingly, we conclude
that Ring’s unsubstantiated claim in this regard fails to meet the after-
discovered facts exception to the PCRA’s jurisdictional time bar.
Additionally, we observe that Ring devotes the majority of his
Argument section to allegations of the Nocitos’ ineffectiveness, which
resulted in his entering an unintelligent and involuntary guilty plea. See
Brief for Appellant at 14-28.7
“[A] claim for ineffective assistance of counsel does not save an
otherwise untimely petition for review on the merits.” Commonwealth v.
Gamboa-Taylor, 753 A.2d 780, 785 (Pa. 2000) (citing Commonwealth v.
Lark, 746 A.2d 585, 589-90 (Pa. 2000) (stating that couching an argument
in terms of ineffectiveness cannot save a petition that does not fall into an
exception to the jurisdictional time bar)); see also Gamboa-Taylor, 753
A.2d at 785-86 (holding that the “fact” that current counsel discovered that
prior PCRA counsel failed to develop issue of trial counsel’s ineffectiveness
does not satisfy the after-discovered facts exception to the time-bar).
In any event, Ring is not entitled to relief on the merits of this claim
because it has been previously litigated. See 42 Pa.C.S.A. § 9543(a)(3)
(providing that, in order to be eligible for PCRA relief, a petitioner must
plead and prove that his or her claim has not been previously litigated). The
7
Ring does not set forth a claim of the Nocitos’ ineffectiveness in his
Statement of Questions Presented. See Pa.R.A.P. 2116(a).
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PCRA court, in its January 23, 2014 Pa.R.A.P. 907 Notice, properly
determined that Ring’s claim of the Nocitos’ ineffectiveness was previously
litigated in connection with Ring’s first PCRA Petition. See Rule 907 Notice,
1/23/14, at 2; see also Ring, 996 A.2d 554 (unpublished memorandum at
5-8). Accordingly, Ring is not eligible for PCRA relief in the instant appeal
regarding this claim. See 42 Pa.C.S.A. § 9543(a)(3); see also
Commonwealth v. Hutchins, 760 A.2d 50, 55 (Pa. Super. 2000) (stating
that a PCRA petitioner cannot obtain PCRA review of previously litigated
claims by presenting those claims again in a PCRA petition and setting forth
new theories in support thereof).
Because we conclude that the PCRA court neither abused its discretion
nor committed an error of law by dismissing Ring’s second PCRA Petition, we
affirm the Order on appeal.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/13/2015
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