Com. v. Ramos, R.

• Court: Superior Court of Pennsylvania
• Decided: October 19, 2020
• Docket: 1993 EDA 2018
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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