Com. v. Ruiz, J.

• Court: Superior Court of Pennsylvania
• Decided: September 30, 2014
• Docket: 1869 MDA 2013
• Status: Unpublished

Opinion

J-S56044-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JOSE JUOQUIN RUIZ,

Appellant No. 1869 MDA 2013

Appeal from the PCRA Order October 25, 2013 in the Court of Common Pleas of York County Criminal Division at Nos.: CP-67-CR-0001095-2008; CP-67-CR-0007560-2006

BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 30, 2014

In these consolidated cases, Appellant, Jose Juoquin Ruiz, appeals pro

se from the order dismissing his second petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We

affirm.

The relevant facts and procedural history of this appeal are as follows.

In case CP-67-CR-0007560-2006, on September 19, 2007, a jury found

Appellant guilty of one count each of rape of a child, involuntary deviate

sexual intercourse with a child, aggravated indecent assault of a child, and

two counts each of unlawful contact with a minor, indecent assault, and

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S56044-14

corruption of minors.1

abuse of his stepdaughter and her friend when the victims were ten years

old. On June 20, 2008, the trial court sentenced Appellant to a term of not

less than sixteen nor more than thirty-

filed a direct appeal, and this Court affirmed the judgment of sentence on

September 2, 2009. (See Commonwealth v. Ruiz, 986 A.2d 1264 (Pa.

Super. 2009) (unpublished memorandum)). Appellant did not file a petition

for allowance of appeal with our Supreme Court.

In case CP-67-CR-0001095-2008, on July 15, 2009, a jury found

Appellant guilty of three counts each of rape of a child, involuntary deviate

sexual intercourse with a child, and unlawful contact with a minor.2 The

friends while the victims were six and eight years old. On October 26, 2009,

the trial court sentenced Appellant to a term of not less than thirty nor more

Court affirmed the judgment of sentence on December 7, 2010. (See

Commonwealth v. Ruiz, 23 A.3d 571 (Pa. Super. 2010) (unpublished

memorandum)).

1 18 Pa.C.S.A. §§ 3121(c), 3123(b), 3125(b), 6318(a), 3126(a) and 6301(a)(1), respectively. 2 18 Pa.C.S.A. §§ 3121(c), 3123(b), and 6318(a), respectively.

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allowance of appeal on June 7, 2011. (See Commonwealth v. Ruiz, 23

A.3d 541 (Pa. 2011)).

On June 13, 2012, Appellant filed his first pro se PCRA petition,

collaterally attacking his convictions in cases CP-67-CR-0007560-2006 and

CP-67-CR-0001095-2008. The PCRA court appointed counsel, who

subsequently withdrew from representation pursuant to Turner/Finley.3 On

petition.

On September 13, 2013, Appellant filed the instant pro se PCRA

petition, again collaterally attacking his convictions in cases CP-67-CR-

0007560-2006 and CP-67-CR-0001095-2008. On September 30, 2013, the

PCRA court entered an order giving notice of its intention to dismiss the

PCRA petition as untimely. See Pa.R.Crim.P. 907(1). Appellant did not

respond to the Rule 907 notice. Instead, on October 16, 2013, Appellant

filed a notice of appeal from the order entered September 30, 2013 and a

statement of errors complained of on appeal. See Pa.R.A.P. 1925(b). On

October 25, 2013, the court entered its order dismissing the PCRA petition. 4 ____________________________________________

3 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1998) (en banc). 4

regard this appeal as timely. See Pa.R.A.P. 905(a)(5) A notice of appeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed after such entry and on the day see also Commonwealth v. Swartzfager, 59 A.3d 616, 618 (Footnote Continued Next Page)

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The court filed a Rule 1925(a) opinion on January 15, 2014. See Pa.R.A.P.

1925(a).

Appellant raises the following issues for our review:

1. The scope of review[?]

2. Ineffective [a]ssistance of counsel to [f]ile a researched and

instead of submitting a [g]eneric one to the court[?]

3. Ineffective [a]ssistance of counsel to [f]ile a challenge and-

allowing prosecution to have two (2) said victims testify that are from a case that has not been to trial yet in another matter[?]

4. Ineffective [a]ssistance of counsel to raise in court and in [a]ppeal, [p]rosecutor express personal opinions about [Appellant] in this case to the jury[?]

5. Ineffective [a]ssistance of counsel to obtain medical -

6. Sentencing [j]udge mis-use of the Sentencing Guide line [sic] and giving a defendant not under a [c]apitol [sic] [c]ase a [s]entence of [d]eath by [i]ncarceration[?]

7. Ineffective [a]ssistance of counsel to [r]etain and have a translator for [Appellant] who is/was unable to speak, read or understand English enough to understand what was being said or going on in all of his [c]ourt [p]roceedings[?]

_______________________ (Footnote Continued)

n.3 (Pa. Super. 2012) (accepting premature notice of appeal filed after entry of Rule 907 Notice but before final order dismissing PCRA petition). We have amended the caption to reflect the date the PCRA court entered its final order.

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8. Ineffective [a]ssistance of counsel to object to

[e]videntiary [h]earing as toward the [f]inding of their reports[?]

9. Ineffective [a]ssistance of counsel for not attaining a medi opinions, since their medical doctor[s] were allow[ed] to testify[?]

10. The Appellant avers that the Commonwealth [f]ailed to present sufficient evidence at trial to sustain guilty verdicts in both trials. 7560-2006, 1095-2008[?]

11. Ineffective [a]ssistance of couns[el] in trial and [a]ppeals to raise and argue the inconsistent statements by said victims[?]

12. Motive, [w]hy would these victims say this[?] Ineffective [a]ssistance of counsel to investigate the [p]ossibility of a [s]econd theory[?]

-5).

Our standard of review of a trial court order granting or denying relief under the PCRA calls upon us to determine whether the determination of the PCRA court is supported by the evidence of

not be disturbed unless there is no support for the findings in the certified record.

Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013)

(citations and quotation marks omitted).

B

consider whether this appeal is properly before us.

A PCRA petition, including a second or subsequent one, must be file sentence became final, unless he pleads and proves one of the three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A judgment becomes final at the conclusion of direct review by this Court or the United States Supreme Court, or at the expiration of the time for seeking such review. 42 Pa.C.S.[A.] §

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jurisdictional; therefore, a court may not address the merits of the issues raised if the petition was not timely filed. The timeliness requirements apply to all PCRA petitions, regardless of the nature of the individual claims raised therein. The PCRA squarely places upon the petitioner the burden of proving an untimely petition fits within one of the three exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations

and footnote omitted).

Here, in case CP-67-CR-0007560-2006

sentence became final on October 2, 2009, when his time to file a petition

for allowance of appeal with our Supreme Court expired. See Pa.R.A.P.

1113(a); 42 Pa.C.S.A. § 9545(b)(3). Therefore, he had one year from that

date to file a petition for collateral relief in that case, specifically, until

October 4, 2010.5 See 42 Pa.C.S.A. § 9545(b)(1). In case CP-67-CR-

0001095-2008,

September 5, 2011, when his time to file a petition for writ of certiorari with

the United States Supreme Court expired. See U.S. Sup. Ct. R. 13; 42

Pa.C.S.A. § 9545(b)(3). Therefore, he had one year from that date to file a

petition for collateral relief in that case, specifically, until September 5,

2012. See 42 Pa.C.S.A. § 9545(b)(1). Because Appellant filed the instant

petition on September 13, 2013, it is untimely on its face in both cases, and

5 The last day of the filing period, October 2, 2010, fell on a Saturday. Therefore, Appellant had until that Monday to file the petition. See 1 Pa.C.S.A. § 1908.

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the PCRA court lacked jurisdiction to review it unless he pleaded and proved

one of the statutory exceptions to the time-bar. See id. at § 9545(b)(1)(i)-

(iii).

Section 9545 of the PCRA provides only three limited exceptions that

allow for review of an untimely PCRA petition:

(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.

Id. o be untimely, and no exception

has been pled and proven, the petition must be dismissed without a hearing

because Pennsylvania courts are without jurisdiction to consider the merits

Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa.

Super. 2011), appeal denied, 47 A.3d 845 (Pa. 2012) (citation omitted). In

addition, a PCRA petition invoking one of these statutory exceptions must

42 Pa.C.S.A. § 9545(b)(2).

Our has

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Commonwealth v. Hawkins, 953 A.2d 1248, 1253 (Pa. 2006) (citation

omitted). Therefore, an appellant must acknowledge that his PCRA petition

is untimely, and demonstrate that one or more of the statutory exceptions

applies. See Commonwealth v. Crews, 863 A.2d 498, 501 (Pa. 2004).

Here, Appellant has not acknowledged that his PCRA petition is

untimely, nor has he attempted to plead and prove that any of the statutory

exceptions to the time-bar apply to this case. (See -

narrative, in which he does not assert the applicability of any of the time-bar

exceptions. (See id.). His pro se PCRA petition is also devoid of reference

to a potentially applicable timeliness exception. (See PCRA Petition,

9/13/13, at 1-7).

Accordingly, we conclude that Appellant has not met his burden of

proving his untimely petition fits within one of the three limited exceptions to

-bar. See Jones, supra at 17. The PCRA court properly

-bar

pleaded or proven.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/30/2014

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