Com. v. Muniz-Ruiz, J.

• Court: Superior Court of Pennsylvania
• Decided: February 9, 2021
• Docket: 800 MDA 2020
• Status: Unpublished

Opinion

J-S44029-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JULIANO MUNIZ-RUIZ : : Appellant : No. 800 MDA 2020

Appeal from the PCRA Order Entered May 27, 2020 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0001765-2018

BEFORE: BENDER, P.J.E., NICHOLS, J., and McCAFFERY, J.

MEMORANDUM BY NICHOLS, J.: FILED: FEBRUARY 9, 2021

Appellant Juliano Muniz-Ruiz appeals from the order denying his Post

Conviction Relief Act1 (PCRA) petition following a hearing. Appellant claims

that his trial counsel was ineffective for (1) failing to consult with him

regarding a direct appeal and (2) failing file a post-sentence motion nunc pro

tunc. We are constrained to conclude that Appellant’s claims are waived and

affirm the PCRA court’s order.

The procedural history of this appeal is as follows. On December 7,

2018, Appellant entered open guilty pleas to criminal attempt to criminal

homicide and strangulation.2 On April 5, 2019, the trial court sentenced to

twenty to forty years’ imprisonment to be followed by ten years’ probation.

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1 42 Pa.C.S. §§ 9541-9546.

2 18 Pa.C.S. §§ 901(a), 2501(a), 2718(a). J-S44029-20

Appellant’s trial counsel, Eric Keith Dowdle, Esq., represented Appellant at the

guilty plea and sentencing, but did not file a post-sentence motion or a timely

direct appeal.

Appellant timely filed a pro se notice of appeal.3 This Court permitted

trial counsel to withdraw, and present counsel entered an appearance on

Appellant’s behalf. Appellant discontinued his direct appeal on September 23,

2019.

Appellant timely filed a pro se PCRA petition on October 3, 2019, and

the PCRA court appointed present counsel. Present counsel initially filed a no-

merit letter and an application to withdraw. On April 30, 2020, however,

present counsel filed the PCRA petition giving rise to this appeal. Therein,

Appellant asserted that trial counsel was ineffective for “failing to file a post-

sentence motion, thereby waiving all potential sentencing issues for direct

appeal.” Am. PCRA Pet., 4/30/20, at ¶ 7.

3 We note that Appellant filed two pro se notices of appeal from the judgment of sentence. The clerk of the trial court docketed Appellant’s notices on May 6 and May 9, 2019, and this Court docketed the appeals at 765 and 766 MDA 2019, respectively. Attached to Appellant’s first notice of appeal in 765 MDA 2019 is an envelope stamped Department of Corrections and bearing a postage date of May 1, 2019. Therefore, Appellant’s notice of appeal in 765 MDA 2019 was timely filed and perfected his right to a direct appeal. See Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (discussing the “prisoner mailbox rule”); Commonwealth v. Williams, 151 A.3d 621, 624 (Pa. Super. 2016) (holding that this Court must docket a pro se notice of appeal even if the appellant is represented by counsel).

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The PCRA court held a hearing on May 14, 2020, at which trial counsel,

Appellant’s mother, and Appellant testified. On May 27, 2020, the PCRA court

entered the order denying Appellant’s petition.

Appellant timely appealed and complied with the PCRA court’s order to

file and serve a Pa.R.A.P. 1925(b) statement. In his Rule 1925(b) statement,

Appellant claimed: “The [PCRA] court erred in denying Appellant’s petition for

Post-Conviction Relief [because] Appellant did show that he requested a Post-

Sentence Motion in a reasonable amount of time and that [trial counsel] failed

to file such motion.” Rule 1925(b) Statement, 6/2/20. The PCRA court filed

an opinion concluding, in part, that trial counsel “was not ineffective for failing

to file a post sentence motion as it was not requested in a timely manner.”

PCRA Ct. Op., 6/12/20, at 4.

Appellant presents the following issues for review:

[1]. Whether the PCRA court erred in denying Appellant’s petition for post-conviction relief by finding that Appellant’s trial[] counsel did not render ineffective assistance where the record showed that [trial] counsel failed to file an appeal involving a non-frivolous issue, where he should have known Appellant would want to appeal and would have known had he adequately consulted Appellant.

[2]. Whether the PCRA court erred in denying Appellant’s petition for post-conviction relief by finding that Appellant’s trial[] counsel did not render ineffective assistance where Appellant, through his mother, expressly requested an appeal only twenty-six days after the sentencing hearing, and counsel could and should have filed a post-sentence motion nunc pro tunc which would likely have been accepted by the [trial] court under the circumstances.

Appellant’s Brief at 4.

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Appellant first claims that trial counsel was ineffective for failing to

consult him regarding a direct appeal. Id. at 13-22 (discussing, in relevant

part, Roe v. Flores-Ortega, 528 U.S. 470 (2000)). The Commonwealth

responds that Appellant waived this claim by failing to preserve it in his

amended PCRA petition. Commonwealth’s Brief at 6-7.

Our standard of review from the denial of a PCRA petition “is limited to

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation 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 omitted).

It is well settled that “issues, even those of constitutional dimension,

are waived if not raised in the trial court. A new and different theory of relief

may not be successfully advanced for the first time on appeal.”

Commonwealth v. Santiago, 980 A.2d 659, 666 n.6 (Pa. Super. 2009)

(citations omitted and some formatting altered); see also Pa.R.A.P 302(a)

(stating that “[i]ssues not raised in the lower court are waived and cannot be

raised for the first time on appeal”).

Following our review, we agree with the Commonwealth that Appellant

has waived his issue for review. Appellant’s amended PCRA petition only

alleged that trial counsel was ineffective for failing to file post-sentence

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motions. See Am. PCRA Pet. at ¶ 7. At the PCRA hearing, Appellant referred

to his desire to appeal the judgment of sentence in his testimony, and

Appellant’s present counsel argued that trial counsel had a duty to consult

with Appellant. See N.T., 5/14/20, at 12-13, 33. However, Appellant did not

seek leave to amend his petition to preserve the claim that trial counsel

violated a constitutional duty to consult Appellant concerning a direct appeal.

See Pa.R.Crim.P. 905(A) (noting that a PCRA court “may grant leave to amend

or withdraw a petition for post-conviction collateral relief at any time” and that

“[a]mendment shall be freely allowed to achieve substantial justice”);

Commonwealth v. Mason, 130 A.3d 601, 627 (Pa. 2015). Therefore, we

agree with the Commonwealth that Appellant failed to preserve this claim

before the PCRA court. See Pa.R.A.P. 302(a); Santiago, 980 A.2d at 666

n.6.

We add that Appellant’s Rule 1925(b) statement only identified a single

error with respect to the PCRA court’s ruling concerning trial counsel’s failure

to file a post-sentence motion. Appellant’s statement of errors complained of

on this appeal did not fairly suggest any claim that trial counsel was ineffective

for not consulting with Appellant concerning his appellate rights. See Rule

1925(b) Statement. Accordingly, Appellant also waived this issue under

Pa.R.A.P. 1925(b)(4)(vii). See Pa.R.A.P. 1925(b)(4)(vii) (stating that

“[i]ssues not included in the Statement . . . are waived”); see also

Commonwealth v. Phillips, 141 A.3d 512, 522 (Pa. Super. 2016).

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In his second claim, Appellant argues that trial counsel was ineffective

for failing to file a post-sentence motion nunc pro tunc. Appellant’s Brief at

23. Appellant asserts that his mother contacted trial counsel on May 1, 2019,

sixteen days after sentencing, but within thirty days of the judgment of

sentence. Id. at 24. Appellant claims that

all [trial counsel] had to do at this point to revive Appellant’s right to appeal was to file a post-sentence motion nunc pro tunc, which exists for the very purpose of rectifying excusable or de minim[i]s tardiness in filing post-sentence motions; and such motions are routinely countenanced by courts at their equitable discretion.

Id.

Appellant continues that there would have been sufficient reason for the

trial court to grant nunc pro tunc relief based on Appellant’s incarceration and

his mental health conditions, including Asperger’s syndrome. Id. at 24-25.

According to Appellant, these conditions led to “misunderstandings,

miscommunications[,] and non-communication” between Appellant and trial

counsel, such that Appellant’s mother “usually served as the main medium of

communication between them, naturally causing delays in correspondence.”

Id. at 25. Appellant asserts that the standard for granting nunc pro tunc relief

is “very low” such that “various obstacles to communication would surely have

satisfied it.” Id.

The Commonwealth responds that Appellant did not prove trial counsel’s

ineffectiveness with respect to the filing of post-sentence motions.

Commonwealth’s Brief at 9. The Commonwealth emphasizes that the PCRA

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court made credibility determinations rejecting Appellant’s and his mother’s

testimony and accepting trial counsel’s testimony, all of which were supported

by the record. Id. at 9-10. Emphasizing the PCRA court’s finding that

Appellant’s mother did not contact trial counsel until after the time for timely

filing post-sentence motions ended, the Commonwealth concludes Appellant’s

claim merits no relief. Id. at 11.

Similar to his first claim, Appellant raises a new theory of relief on

appeal. See Commonwealth v. Moore, 978 A.2d 988, 991 (Pa. Super.

2009) (noting that a request for nunc pro tunc relief is distinct from an order

resolving the merits of a post-sentence motion); Commonwealth v. Dreves,

839 A.2d 1122, 1128 (Pa. Super. 2003) (en banc). Specifically, at the PCRA

hearing, Appellant presented evidence that he timely requested that trial

counsel file a post-sentence motion. See N.T. PCRA Hr’g, 5/14/20, at 6

(indicating that Appellant’s mother testified that she contacted trial counsel

the week after Appellant was sentenced to appeal), 11 (indicating that

Appellant testified that on April 9, 2018, he asked his mother to call trial

counsel), 34 (indicating that Appellant’s present counsel argued that the

evidence showed that Appellant communicated his desire to appeal in a timely

manner). In this appeal, Appellant focuses on trial counsel’s ineffectiveness

for not seeking nunc pro tunc relief. Therefore, we must conclude that

Appellant did not preserve his appellate issue because he failed to raise it

before the PCRA court. See Pa.R.A.P. 302(a); Santiago, 980 A.2d at 666

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For these reasons, Appellant failed to preserve his appellate claims.

Accordingly, we affirm the PCRA court’s order.4

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 02/09/2021

4 However, we note that we would find no legal error in the PCRA court’s denial of Appellant’s claim that trial counsel was ineffective for failing to file a timely post-sentence motion. Specifically, the record supports the PCRA court’s findings that Appellant was aware of his post-sentence and appellate rights and did not timely request trial counsel to preserve a challenge to discretionary aspects of the sentence. See Commonwealth v. Ousley, 21 A.3d at 1242.

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