Com. v. Cruz-Rivera, J.

J-S18004-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMIE CRUZ-RIVERA :
:
Appellant : No. 209 MDA 2022
Appeal from the PCRA Order Entered January 7, 2022
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0002987-2016
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: JULY 5, 2022
Appellant, Jamie Cruz-Rivera, appeals from the post-conviction court’s
January 7, 2022 order denying his timely-filed petition under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541-9546. Appellant argues that
the court erred by dismissing his petition, where his trial counsel acted
ineffectively by not filing a post-sentence motion and/or a direct appeal on
Appellant’s behalf. Additionally, Appellant’s counsel, Dennis C. Dougherty,
Esq., has filed a Turner/Finley1 ‘no-merit’ letter and a petition to withdraw
from representing Appellant, to which Appellant has not responded. After
careful review, we grant counsel’s petition to withdraw and affirm the order
denying Appellant post-conviction relief.
____________________________________________
1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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The facts underlying Appellant’s convictions are not pertinent to his
present appeal. The PCRA court summarized the procedural history of his
case, as follows:
On May 31 2017, [Appellant] … appeared before the court and
entered a negotiated guilty plea to two charges…, specifically to
corruption of minors (count two) and unlawful contact with a
minor (count three).1 The court accepted the guilty plea and
proceeded to sentence [Appellant] on that date[,] in accordance
with the terms of the negotiated plea agreement[,] to time served
to twenty-three months[’] incarceration, five years of probation,
restitution, and costs. [Appellant] did not adjust well to
supervision and was back before the court for a parole violation
hearing on August 23, 2017. At that time, the Honorable Judge
Howard F. Knisely found [Appellant] in violation of the terms of
supervision and sentenced him to the unexpired balance of his
parole term. [Appellant] was to be paroled after three months
with special conditions and the continuation of the previously[-]
imposed[,] five-year probation period.
1 In violation of 18 Pa.C.S.[] § 6301(a)(1)(ii), and 18
Pa.C.S.[] § 6318(a)(1), respectively.
[Appellant] appeared before this court on May 24, 2019, this time
for a probation violation.3 After a hearing, the court revoked
[Appellant’s] probation and deferred sentencing pending the
completion of a Pre-Sentence Investigation (“PSI”) to assist the
court in fashioning an appropriate and reasonable sentence.
Judgment of sentence was entered on August 22, 2019, when the
court sentenced [Appellant] to an aggregate term of two to five
years’ incarceration in a state correctional facility.4 No post[-
]sentence motion was filed, and no appeal was taken. [Appellant]
was represented throughout both violation proceedings by
privately retained counsel, Anthony J. Ratasiewicz, Esquire (‘‘trial
counsel”).
3 [Appellant’s] parole expired on March 11, 2018.
4 Specifically, [Appellant] was sentenced to two to five
years[’] incarceration on the corruption of minors count and
two to five years[’] incarceration on the unlawful contact
with a minor charge, said sentences to be served
concurrently.
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Acting pro se on March 20, 2020,5 [Appellant] submitted a
pleading entitled “Motion for Withdrawl [sic] of Counsel Ineffective
Assistance of Counsel (IAC).” Upon review, the [c]ourt deemed
[Appellant’s] pleading to be a timely6 petition for post-conviction
collateral relief under the PCRA, however, at the time of filing, the
court was operating at a severely restricted capacity due to the
statewide Judicial Emergency declared in response to the Covid-
19 pandemic. Consequently, the court did not officially appoint
counsel pursuant to Rule 904(A) of the Pennsylvania Rules of
Criminal Procedure until June 19, 2020,8 at which time it
appointed [Attorney] Dougherty … (“PCRA counsel”) to represent
[Appellant] on his collateral claims, and granted leave to file an
amended petition by August 19, 2020. Upon request of PCRA
counsel, the court twice extended the deadline to allow counsel
time to obtain the necessary files and records from [Appellant]’s
trial counsel. Ultimately, an amended petition for [PCRA] relief
was submitted on November 25, 2020, raising the single issue
that trial counsel rendered ineffective assistance for failing to
comply with [Appellant’s] alleged request to file a post-sentence
motion and/or a direct appeal to the Superior Court. The
Commonwealth filed a response to the Amended Petition,
conceding the need for an evidentiary hearing, which the court
held on June 11, 2021.
5 Although the filing was docketed by the Clerk of Courts on
March 25, 2020, it is deemed filed on the date of mailing,
March 20, 2020, rather than the date of docketing, pursuant
to the “prisoner mailbox rule.” See Commonwealth v.
Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011) (“Under
the prisoner mailbox rule, we deem a pro se document filed
on the date it is placed in the hands of prison authorities for
mailing.”).
6 Pursuant to 42 Pa.C.S.[] § 9545(b), a petition for relief
must be filed within one year of the date the judgment of
sentence becomes final. For purposes of the PCRA, a
judgment of sentence becomes final at the conclusion of
direct review, including discretionary review in the Supreme
Court of Pennsylvania, or at the expiration of the time for
seeking such review. [42 Pa.C.S.] § 9545(b)(3). See also
Commonwealth v. Jones, 54 A3d 14, 17 (Pa. Super.
2012). As [Appellant] did not file a notice of appeal with the
Pennsylvania Superior Court, his judgment of sentence
became final on September 22, 2019, when the period for
filing an appeal with the Superior Court expired (30 days
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after the judgment of sentence was entered on August 22,
2019). [Appellant] filed his motion, which the court deemed
to be a pro se PCRA petition, on March 20, 2020; it is timely.
See Filing Discussion, supra n[.]5.
8 In the interim, [Appellant] submitted a second pro se
pleading entitled “Motion to Modify Sentence Nunc Pro Tunc”
on April 21, 2020, which in substance repeats the alleged
grounds for relief stated in [Appellant’s] filing of March 20,
2020.
PCRA Court Order & Opinion (PCOO), 1/7/22, at 1-3 (unnecessary
capitalization and some footnotes omitted).
At the close of the PCRA hearing, the court took the matter under
advisement. On January 7, 2022, the court issued an order and opinion
dismissing Appellant’s petition. It explained that, after hearing the testimony
of Attorney Ratasiewicz and Appellant, it found “that while trial counsel’s
testimony was candid and credible, [Appellant’s] testimony was utterly lacking
in indicia of reliability and candor.” Id. at 6. Accordingly, the court did not
believe that Appellant had requested counsel to file a post-sentence motion
or direct appeal on his behalf and, thus, counsel did not act ineffectively by
failing to do so. Id. at 7.
Appellant filed a timely notice of appeal, and he complied with the
court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. Therein, Appellant preserved one issue for our
review: “The [PCRA c]ourt erred and abused its discretion in finding trial
counsel to be effective and his testimony credible when he testified that
[Appellant] did not ask for a post[-]sentence motion and/or direct appeal of
his probation violation sentence on August 22, 2019.” Pa.R.A.P. 1925(b)
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Statement, 2/23/22, at 1 (single page). On February 28, 2022, the PCRA
court issued a Rule 1925(a) opinion, stating that it was relying on the rationale
set forth in its January 7, 2021 order and opinion to support its decision.
On April 1, 2022, Attorney Dougherty filed with this Court an application
to withdraw from representing Appellant, along with a Turner/Finley no-
merit letter.2 Therefore, we must begin by determining if Attorney Dougherty
has satisfied the requirements for withdrawal.
Counsel petitioning to withdraw from PCRA representation must
proceed … under [Turner/Finley and] … must review the case
zealously. Turner/Finley counsel must then submit a no-merit
letter to the trial court, or brief on appeal to this Court, detailing
the nature and extent of counsel’s diligent review of the case,
listing the issues which petitioner wants to have reviewed,
explaining why and how those issues lack merit, and requesting
permission to withdraw.
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.
***
[W]here counsel submits a petition and no-merit letter that …
satisfy the technical demands of Turner/Finley, the court — trial
court or this Court — must then conduct its own review of the
merits of the case. If the court agrees with counsel that the claims
are without merit, the court will permit counsel to withdraw and
deny relief.
Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation and
quotation marks omitted).
____________________________________________
2 As of the date of this writing, Appellant has not filed a pro se response.
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Instantly, we conclude that Attorney Dougherty has complied with the
requirements of Turner/Finley. Specifically, in his no-merit letter, counsel
details the nature and extent of his review, addresses the ineffectiveness claim
Appellant raised in his PCRA petition, and discusses his conclusion that
Appellant’s issue lacks merit. See No-Merit Letter at 6-9. Additionally,
counsel served Appellant with a copy of the petition to withdraw and no-merit
letter, and he advised Appellant of his right to proceed pro se or with privately
retained counsel. See id. at 10; Motion to Withdraw, 4/1/22, at 2. Thus, we
now conduct an independent review of the merits of Appellant’s claim,
applying the following standard of review:
“In reviewing the propriety of an order granting or denying PCRA
relief, an appellate court is limited to ascertaining whether the
record supports the determination of the PCRA court and whether
the ruling is free of legal error.” Commonwealth v. Johnson, …
966 A.2d 523, 532 ([Pa.] 2009). We pay great deference to the
findings of the PCRA court, “but its legal determinations are
subject to our plenary review.” Id.Commonwealth v. Matias, 63 A.3d 807, 810 (Pa. Super. 2013).
Appellant claimed in his pro se and amended petitions that he asked
Attorney Ratasiewicz to file a post-sentence motion to modify his sentence
and/or to withdraw his guilty plea, as well as a direct appeal from his judgment
of sentence, but counsel failed to do so. Appellant averred that counsel’s
inaction caused the complete loss of Appellant’s direct appeal rights and
constitutes ineffective assistance of counsel.
Preliminarily, we recognize that:
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It is well-established that counsel is presumed to have provided
effective representation unless the PCRA petitioner pleads and
proves all of the following: (1) the underlying legal claim is of
arguable merit; (2) counsel’s action or inaction lacked any
objectively reasonable basis designed to effectuate his client’s
interest; and (3) prejudice, to the effect that there was a
reasonable probability of a different outcome if not for counsel’s
error. The PCRA court may deny an ineffectiveness claim if the
petitioner’s evidence fails to meet a single one of these prongs.
Moreover, a PCRA petitioner bears the burden of demonstrating
counsel’s ineffectiveness.
Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (citations
omitted).
Additionally,
[o]ur Supreme Court has held that counsel’s unexplained failure
to file a requested direct appeal constitutes ineffective assistance
per se, such that the petitioner is entitled to reinstatement of
direct appeal rights nunc pro tunc without establishing prejudice.
Commonwealth v. Lantzy, … 736 A.2d 564, 572 ([Pa.] 1999).
However, before a court will find ineffectiveness of counsel for
failing to file a direct appeal, the petitioner must prove that he
requested a direct appeal and the counsel disregarded the
request. Commonwealth v. Bath, 907 A.2d 619 (Pa. Super.
2006).
Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa. Super. 2011).
Similarly, before we will find counsel ineffective for failing to file post-sentence
motions, the petitioner must prove that he requested counsel file post-
sentence motions, but that counsel disregarded his request. See
Commonwealth v. Velasquez, 563 A.2d 1273, 1275 (Pa. Super. 1989)
(stating that counsel cannot “be deemed in effective for failing to do what he
was not requested to do”) (citations omitted).
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In this case, the PCRA court found that Appellant did not request that
Attorney Ratasiewicz file a post-sentence motion or direct appeal. It
explained:
While [Appellant] … adequately pled that he requested, both orally
and in writing, that his attorney file a direct appeal on his behalf,
he … failed to provide the court with any credible proof to support
a factual basis for this allegation. At the evidentiary hearing, the
only two witnesses to testify were [Appellant] and his trial
counsel. They both testified to having a verbal conversation in
the holding cell behind the courtroom after the sentencing. Notes
of Testimony (“N.T.’’)[, 6/11/21,] at 5, 9-10. Their testimony
diverge[d], however, with regard to the substance of that
conversation. While trial counsel ha[d] no recollection of being
asked to pursue an appeal ([id.] at 6), [Appellant] maintain[ed]
the two “talked about filing an appeal,” and that [Appellant] told
[trial counsel] to talk to [Appellant’s] friend Jess and tell her how
much money to send.” Id. at 10. [Appellant] further presented
the court with a handwritten letter that he claim[ed] to have sent
trial counsel requesting post[-]sentence motions and a direct
appeal. See Pet. Evid. Hearing. Ex.1; see also Pet. Mot. to
Withdraw Counsel at Ex. A; Pet. Mot. To Modify at Ex.1. Trial
counsel [testified that he] never received that letter. N.T. at 6.
The issue, therefore, turns on a single question of fact: did
[Appellant] ask trial counsel, whether orally, in writing, or both,
to file a direct appeal on his behalf? … [T]he answer to this
question boils down to a matter of credibility. Does the court
believe the testimony of trial counsel? Or does the court believe
the testimony of [Appellant]?
Having examined the conflicting testimony regarding the oral
conversation after the sentencing hearing, the court turns next to
the letter offered with [Appellant’s] pleadings and moved into
evidence at the evidentiary hearing as [Appellant]’s Exhibit 1.
This exhibit contains a copy of a handwritten letter [Appellant]
claims he personally mailed to trial counsel within the time frame
for filing an appeal. [Id.] at 10. [Appellant] explained that since
he cannot read or write, he had another individual write the letter
on his behalf. Id. [Appellant] did not, however, provide the name
of that individual or call the individual to testify. Id. at 11.
Although the letter bears the date of August 25, 2019, [Appellant]
stated at the hearing that the date was incorrect. When pressed,
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however, he could recall neither the date the letter was written[,]
nor the date on which he claims to have mailed it. Id. Trial
counsel testified that he never received the letter, although he has
maintained the same office address both prior to and throughout
his representation of [Appellant], including throughout the
relevant appeal period. [Id. at] 6, 7-8. [Appellant] clearly knew
his counsel’s correct mailing address; he testified to having
retained counsel on several prior occasions and to providing copies
of trial counsel’s business cards to past acquaintances. [Id.] at
12.
The court … heard and reviewed the live testimony of the
witnesses and examined the various iterations of the letter
submitted by [Appellant]. Considering the totality of the
attendant circumstances, the court finds that while trial counsel’s
testimony was candid and credible, [Appellant’s] testimony was
utterly lacking in indicia of reliability and candor. He could not
recall key details, such as the date on which he mailed the letter
or who even wrote the letter for him. The letter itself bears no
hallmarks of authenticity, having been written by an unnamed
individual who [Appellant] failed to produce for authentication.
Such a witness could easily have corroborated [Appellant]’s
account that the letter was written and mailed … within the
appropriate timeframe for a direct appeal.10 On the contrary, trial
counsel is an experienced and respected member in good standing
with the Pennsylvania Bar who has no motivation to testify
untruthfully. He stated plainly that [Appellant] neither verbally
requested[,] nor directed through written letter[,] that counsel file
post[-]sentence motions or a direct appeal on his behalf. Trial
counsel represented [Appellant] on more than one occasion prior
to the instant matter without incident. In fact, [Appellant] himself
admitted that trial counsel had never before failed to be
responsive to his needs and that he had recommended trial
counsel to others. [Id.] at 12. Based on all … these factors, it is
apparent to the court that while [Appellant] may now wish he had
requested that trial counsel file post[-sentence] motions or a
direct appeal, [Appellant] simply cannot prove that he actually did
so.
10 The court further notes its independent observation that
with [Appellant’s] original pleading of March 20, 2020
(entitled “Motion to Withdrawl [sic] of Counsel”), he
attaches (as Exhibit A) a two-sided letter that appears to be
a photocopy of the letter [Appellant] claims to have mailed
trial counsel. In his subsequent pleading of April 21, 2020
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(entitled “Motion to Modify Sentence Nun Pro Tunc”),
however, he attaches (Exhibit 1) a seemingly identical yet
noticeably different letter. A cursory glance at this second
letter would lead the unwary to believe the two exhibits are
duplicates; however, a closer examination reveals that the
exhibits contain two different letters. First, Exhibit A is a
photocopy, while Exhibit 1 is an original document,
handwritten in blue ink. Second, although the handwriting
of the two letters appears to be the same, the wording is
not actually identical. For example, there are misspellings
in one letter that do not appear in the other and capitalized
letters in one that are lower-case[] in the other. Most
tellingly, however, is the simple difference in formatting —
for example, a whole line of writing in one letter is broken
into two lines in the other, and a word is hyphenated in one
and not the other. Although the parties made no mention
of these discrepancies or their meaning during the
evidentiary hearing, the court finds [Appellant’s] intentional
yet failed effort at producing identical letters to bear
negatively on [Appellant’s] credibility and testimony as a
whole.
PCOO at 4-7 (unnecessary capitalization omitted).
Noting that “credibility determinations are the exclusive province of the
PCRA court[,]” Attorney Dougherty concludes that the ineffectiveness claim
Appellant seeks to raise herein is meritless. No-Merit Letter at 9
(unnumbered) (citing Commonwealth v. Pate, 617 A.2d 754, 760 (Pa.
Super. 1992) (citations omitted)). We agree. The record supports the court’s
credibility determination that Appellant did not ask Attorney Ratasiewicz to file
post-sentence motions or a direct appeal; consequently, that determination is
binding on this Court. See Commonwealth v. Abu-Jamal, 720 A.2d 79, 99
(Pa. 1998) (“Just as with any other credibility determination, where the record
supports the PCRA court’s credibility determinations, those determinations are
binding on [the appellate] court.”). Because Appellant did not ask Attorney
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Ratasiewicz to file a post-sentence motion or direct appeal, counsel cannot be
deemed ineffective for failing to do so. Therefore, the PCRA court did not err
in dismissing Appellant’s petition, and we grant Attorney Dougherty’s petition
to withdraw.
Order affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/05/2022
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