J-S65017-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSE ANGEL RAMIREZ,
Appellant No. 2637 EDA 2014
Appeal from the PCRA Order August 15, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0001184-2008
BEFORE: BENDER, P.J.E., SHOGAN, and JENKINS, JJ.
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 16, 2015
Jose Angel Ramirez (“Appellant”) appeals pro se from the August 15,
2014 order denying his petition for collateral relief filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546. We affirm.
Appellant pled guilty to third degree murder for the December 9, 2007
stabbing death of Roger Guzman. This Court summarized the facts and
procedural history underlying Appellant’s convictions in our disposition of
Appellant’s direct appeal. Commonwealth v. Ramirez, 2185 EDA 2008, 6
A.3d 558 (Pa. Super. filed July 13, 2010) (unpublished memorandum at 1–
2). The panel affirmed Appellant’s judgment of sentence. Id. at 7.
Appellant did not file a petition for allowance of appeal with the Pennsylvania
Supreme Court.
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The PCRA court updated the procedural history as follows:
On June 29, 2011, Appellant filed a pro se PCRA petition.
In that petition, Appellant raised what this court addressed as
(5) issues: 1) voluntary intoxication as a meritorious defense;
2) trial counsel unlawfully induced him to plea[d] guilty because
he did not have any rights as an illegal immigrant[;] 3) his
sentence should have been lower because he had a gravity score
of zero; 4) his sentence should have been lower because he
came from a broken family which led him to abuse alcohol and
drugs[;] and 5) he was told he would receive a lower sentence.
The court appointed Joseph J. Hylan, Esquire to represent
Appellant. Following his thorough review of the file, Attorney
Hylan petitioned to withdraw as counsel and filed a “no-merit”
letter pursuant to Commonwealth v. Turner, 518 Pa. 491, 544
A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213
(Pa.Super. 1988) (“Turner/Finley”), on October 11, 2011.
Attorney Hylan explained in his letter to Appellant that Appellant
retained the right to continue his pursuit of PCRA relief by
obtaining private counsel or proceeding pro se.
On May 30, 2013, Appellant filed a pro se Motion to Modify
and Reduce Sentence. In his motion, Appellant explained that
he had filed a direct appeal and subsequent PCRA petition “in an
effort to have the imposed sentence modified”. (Motion to
Modify and Reduce Sentence, filed 5/30/13, at 1). Appellant
also stated that he had “from the outset expressed remorse as is
evidenced by his pleading of guilty”. (Id. at 2).
Following the undersigned’s own independent review of the
record and the relevant law, the court issued its Notice Pursuant
to Pa.R.Crim.P. 907(1). The Notice informed Appellant of the
court’s intention to dismiss his petition without a hearing. After
addressing the merits of Appellant’s claims, the court included a
section in the Notice which notified Appellant that he must
respond to the proposed dismissal within twenty (20) days, after
which the court would determine whether his petition should be
dismissed or whether further proceedings were necessary.
(Notice Pursuant to Pa.R.Crim.P. 907(1), filed 7/15/14, at 19–
20). Appellant did not file a response. The undersigned issued
an order dismissing Appellant’s PCRA petition without a hearing
on August 15, 2014. In that order, the court also granted
Attorney Hylan’s petition to withdraw as Court-Appointed
Counsel for Appellant. (Order docketed 8/15/14).
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Appellant filed a notice of appeal pro se on September 9,
2014,2 docketed on September 11, 2014. This court entered an
order on September 15, 2014, directing Appellant to file a
Concise Statement of the Errors Complained of on Appeal
(“concise statement”) within twenty-one (21) days of the order.
Appellant filed a concise statement on September 25, 2014.
2
For purposes of timeliness, the Prisoner Mailbox
Rule provides that Appellant’s notice is deemed filed
on the day of mailing. See Commonwealth v.
Chambers, 35 A.3d 34, 38 (Pa.Super. 2011), appeal
denied, 616 Pa. 625, 46 A.3d 715 (2012) (citation
omitted).
PCRA Court Opinion, 4/22/15, at 2–4.
Appellant presents the following questions for our consideration:1
(1) Was the guilty plea in the instant matter unknowing,
involuntary, and unintelligently entered given the fact that
all of the consequences of the plea were not presented to
the Appellant, most significantly that the Appellant would
face deportation as a result of the conviction?
(2) Was court appointed counsel ineffective given the fact that
he participated in and facilitated an invalid guilty plea?
(3) Was PCRA counsel ineffective given the fact that he merely
copied the pro se petition, failed to amend the petition in
any way, failed to request an evidentiary hearing, failed to
engage in a dialogue with the Appellant to better
understand the petition, and for failing to perfect and
advance the claim of an invalid, unknowing plea[?]
(4) Did the trial court err by dismissing the PCRA petition
without an evidentiary hearing, thereby depriving
Appellant of the opportunity to present testimony in
support of the petition?
Appellant’s Brief at 7.
____________________________________________
1
We have renumbered Appellant’s issues for ease of disposition.
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When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.
2014) (en banc)). This Court is limited to determining whether the evidence
of record supports the conclusions of the PCRA court and whether the ruling
is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.
Super. 2012). We grant great deference to the PCRA court’s findings that
are supported in the record and will not disturb them unless they have no
support in the certified record. Commonwealth v. Rigg, 84 A.3d 1080,
1084 (Pa. Super. 2014). Moreover, the PCRA court’s credibility
determinations, when supported by the record, are binding on this Court.
Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011).
In order to obtain collateral relief, a PCRA petitioner must establish by
a preponderance of the evidence that his conviction or sentence resulted
from one or more of the circumstances enumerated in 42 Pa.C.S.
§ 9543(a)(2). Instantly, Appellant asserted in his pro se PCRA petition the
existence of ineffective assistance of counsel (“IAC”) pursuant to 42 Pa.C.S.
§ 9543(a)(2)(ii).
We remind Appellant that pro se status confers no special benefit upon
an appellant. Commonwealth v. Blakeney, 108 A.3d 739, 766 (Pa.
2014), cert. denied, 135 S.Ct. 2817 (2015). “[A] pro se litigant must
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comply with the procedural rules set forth in the Pennsylvania Rules of the
Court.” Commonwealth v. Lyons, 833 A.2d 245, 251–252 (Pa. Super.
2003) (citation omitted); Commonwealth v. Williams, 896 A.2d 523, 534
(Pa. 2006). Also, an issue is waived if the appellant “could have raised it but
failed to do so before trial, at trial, . . . on appeal or in a prior state post-
conviction proceeding.” Commonwealth v. Fears, 86 A.3d 795, 803–804
(Pa. 2014) (citation omitted); 42 Pa.C.S. § 9544(b).
In his first two issues, Appellant complains that his guilty plea was
unknowing and that defense counsel was ineffective because he allowed
Appellant to enter an invalid guilty plea. In support of his assertion that his
plea was unknowing, Appellant relies on Padilla v. Kentucky, 559 U.S. 356
(2010), in which the United States Supreme Court opined that “counsel must
advise [a] client regarding the risk of deportation.” Id. at 367; Appellant’s
Brief at 11. Claiming that defense counsel failed to advise him “that he
would face deportation as a result of the plea,” Appellant argues that
counsel’s assistance was ineffective. Appellant’s Brief at 11.
The PCRA court disposed of Appellant’s plea challenge and derivative
IAC claim as follows:
Appellant asserts for the first time that he did not knowingly,
voluntarily or intelligently enter into his guilty plea for “various
reasons”. In particular, he asserts he was not informed of the
consequences of doing so, not the least of which is the fact that
he faced deportation as a result of his conviction. Because of
this, Appellant posits his trial counsel was ineffective. Appellant
has waived these issues.
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Our appellate courts have made clear that issues not
raised before the trial court are waived. Pa.R.A.P. 302(a).
* * *
In addition, “where the petitioner does not seek leave to
amend his petition after counsel has filed a Turner/Finley no-
merit letter, the PCRA court is under no obligation to address
new issues.” Rigg, [84 A.3d] at 1085 (citing Rykard. . .).
* * *
In the case sub judice, Appellant did not file a motion to
withdraw his guilty plea. While a claim for ineffective trial
counsel would ordinarily not be heard on direct appeal,5
Appellant failed to raise this issue before the PCRA court in either
his PCRA petition or in response to the Court’s Notice Pursuant to
Pa.R.Crim.P. 907(1) of Intention to Dismiss without a Hearing.
Nor did Appellant request to amend his petition before the court
entered its final order on August 15, 2014.
5
See Commonwealth v. Grant, 572 Pa. 48, 813
A.2d 726 (2002) (determining claims of trial counsel
ineffectiveness should be deferred until PCRA
review).
This court also notes that the United States Supreme Court
decided the seminal case involving a noncitizen defendant’s right
to be adequately informed of the possibility of deportation on
March 31, 2010. See Padilla v. Kentucky, 559 U.S. 356, 130
S.Ct. 1473, 176 L.Ed.2d 284 (2010). Instantly, the Superior
Court panel rendered its decision on July 13, 2010. Appellant
did not file a petition for permission to appeal to the
Pennsylvania Supreme Court. Therefore, Appellant’s judgment
became final on August 12, 2010. Appellant may not now claim
ineffective assistance of trial counsel for the first time on appeal
from the dismissal of his petition under the PCRA based on case
law decided prior to his final judgment. Consequently, for all of
these reasons, it is the undersigned’s opinion that Appellant has
waived this issue on appeal.
PCRA Court Opinion, 4/22/15, at 7-10.
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Upon review, we find support in the record for the trial court’s findings,
and we conclude that its ruling is without error. Contrary to Appellant’s
assertion, the guilty plea and IAC claims he raises on appeal were not
“raised on the face of the PCRA petition.” Appellant’s Brief at 12. Rather,
Appellant merely checked the first three bases for collateral relief on the
form petition, the language of which is drawn from 42 Pa.C.S.
§ 9543(a)(2)(i-iii). PCRA Petition, 6/29/11, at § 4. Although Appellant
listed “unlawfully induced to plead guilty” as a matter to be asserted on
appeal, he did not provide any details or specific averments regarding the
validity of his guilty plea or the ineffectiveness of counsel’s representation.
PCRA Petition, 6/29/11, at § 5(c). In fact, the relief Appellant expressly
sought in filing the petition was “modification of sentence.” PCRA Petition,
6/29/11, at § 11.
Additionally, the record confirms that Appellant did not preserve his
plea challenge by filing a motion to withdraw his plea or petitioning for
allowance of appeal to the Pennsylvania Supreme Court. Moreover,
Appellant did not preserve his IAC claim by seeking leave of the PCRA court
to amend his petition or responding to the PCRA court’s Pa.R.Crim.P. 907
notice of intent to dismiss. Because Appellant did not preserve a challenge
to his guilty plea and defense counsel’s representation in the trial and PCRA
courts, we agree that he has waived his first two issues on appeal. Fears,
86 A.3d at 803–804; 42 Pa.C.S. § 9544(b).
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Appellant’s third issue challenges PCRA counsel’s representation as
ineffective. Appellant’s Brief at 15. According to Appellant:
PCRA counsel’s “review of the court file, including the testimony
of the guilty plea hearing” should have revealed that the
Appellant speaks Spanish and does not understand English well
enough to articulate his claim. Of course the Record clearly
establishes that the trial court was aware of this fact as
evidenced by the appointment of a translator to assist during the
guilty plea colloquy.
It is clear that had PCRA counsel attempted to
communicate with the Appellant he would have realized that a
translator was necessary. Moreover, the trial court’s failure to
appoint a translator when the Record reflected the need for one,
does constitute an abuse of discretion.
Appellant’s Brief at 16.
Upon review, we conclude that Appellant’s argument is inherently
inconsistent and waived. In disposing of Appellant’s IAC claim against PCRA
counsel, we adopt as our own the PCRA court’s well-reasoned analysis,
which is supported by the record and without legal error. The PCRA court
opined as follows:
Appellant protests that PCRA counsel provided ineffective
assistance, in essence because counsel found no merit to
Appellant’s petition. Appellant complains that counsel failed to
amend his petition,6 failed to request an evidentiary hearing,
failed to engage in a dialogue with Appellant to gain a better
understanding of the petition and failed to advance his claim of
an invalid, unknowing plea. Appellant has waived [this] . . .
issue.
6
The court also notes that Attorney Hylan did more
than simply copy the petition as proffered by
Appellant. Specifically, Counsel “reviewed the pro se
petition…the court file, including the testimony of the
guilty plea hearing…and the Superior Court’s
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memorandum opinion. He researched the applicable
law. He went beyond the scope of the petition to
determine if there were any issues, legal or factual,
that Appellant and Appellant’s counsel may have
overlooked.” (Counsel’s Turner/Finley Letter, dated
October 11, 2011). Counsel provided a thorough
review of the case as well as a detailed Turner/Finley
Letter.
Well-settled Pennsylvania law provides that claims of
ineffective assistance of PCRA counsel may not be raised for the
first time on appeal. . . [A] claim of ineffective assistance of
PCRA counsel must be raised upon notice of the PCRA court’s
intent to dismiss the case without a hearing or before the PCRA
court has issued its final order.7 [Commonwealth v.] Henkel, [90
A.3d 16 (Pa.Super. 2014) (en banc), appeal denied, 101 A.3d
785 (2014)]. The Henkel Court also noted that it is especially
important to raise a claim of PCRA counsel ineffectiveness before
the PCRA court has entered its order dismissing the petition
where PCRA counsel has filed a Turner/Finley no-merit letter and
requested to withdraw. Id. at 25–26 (citing and analyzing
Commonwealth v. Pitts, 603 Pa. 1, 981 A.2d 875 (2009)).
Otherwise the claim is waived. Id. at 26; accord
[Commonwealth v.] Ford, [44 A.3d 1190, 1198 (Pa. Super.
2012)]. Cf. Rykard, supra at 1182, 1189 (finding claims
preserved where pro se appellant requested stay of proceedings
after receiving Rule 907 Notice and filed a response raising
ineffective assistance of PCRA counsel claims before entry of
final order).
7
Other alternatives include a timely second PCRA
petition or a serial petition if the petitioner can
demonstrate one of the three exceptions to the time
bar. Henkel, supra at 27–28 (citing Commonwealth
v. Jette, 611 Pa. 166, 23 A.3d 1032, 1044 n.14
(2011)).
Here, Attorney Hylan mailed and filed a detailed and
thorough Turner/Finley letter on October 11, 2011. Although
Appellant subsequently filed a pro se Motion to Modify and
Reduce Sentence in which he asked for a lesser sentence, the
Motion is devoid of any complaints concerning PCRA Counsel.
Moreover, Appellant failed to file a response to this court’s Notice
Pursuant to Pa.R.Crim.P. 907(1) of Intention to Dismiss PCRA
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Petition without a Hearing. Accordingly, Appellant has waived
[this] claim.
PCRA Court Opinion, 4/22/15, at 10–12.
Lastly, we address Appellant’s claim that the PCRA court erred in
dismissing his petition without a hearing. Appellant’s Brief at 9. According
to Appellant, “the Commonwealth did not concede to the facts in the Petition
or the Appellant’s entitlement to relief, therefore, an evidentiary hearing was
required so the Appellant could establish his claim.” Id. The
Commonwealth counters by citing Pa.R.Crim.P. 907(1) for the proposition
that the PCRA court “may deny a PCRA petition without an evidentiary
hearing if the defendant’s claims are meritless on their face and further
proceedings would serve no purpose.” Commonwealth’s Brief at 6. We
agree.
Where a PCRA petition does not raise a “genuine issue of
material fact,” the reviewing court is not required to hold an
evidentiary hearing on the petition. Commonwealth v. Clark,
599 Pa. 204, 212, 961 A.2d 80, 85 (2008); Pa.R.Crim.P. 909(B).
Thus, to entitle himself to a hearing, an appellant must raise an
issue of fact, which, if resolved in his favor, would justify relief.
Commonwealth v. D’Amato, 579 Pa. 490, 513, 856 A.2d 806,
820 (2004) (citations omitted).
Commonwealth v. Simpson, 66 A.3d 253, 260-261 (Pa. 2013). Where
the PCRA court concludes that a petition does not raise any genuine issues
of material fact, and dismisses it without a hearing, we review for an abuse
of discretion. Id. (citing Commonwealth v. Collins, 888 A.2d 564, 579
(Pa. 2005)).
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Here, the PCRA court disposed of Appellant’s challenge with the
following analysis:
Instantly, Appellant first complains the he was denied the
opportunity to present testimony in support of his petition
because the PCRA court dismissed his petition without a hearing.
Appellant does not specify whose testimony or what testimony
he would have presented.3 Regardless, Appellant’s assertion
warrants no relief.
3
As part of the form PCRA petition that Appellant
filed in this matter, a section is available for
requesting an evidentiary hearing and for listing the
witnesses the petitioner would call to testify. (PCRA
Petition, filed 6/29/11, Section 12, at 6). Appellant
left that section blank. (Id.).
* * *
Instantly, neither Attorney Hylan nor this court on
independent review could discern a genuine issue of material
fact which would entitled Appellant to relief.4 Accordingly, the
undersigned issued a Rule 907(1) Notice of intent to dismiss
without a hearing. The court explained that Appellant had
twenty (20) days within which to respond, after which the court
would make a final determination as to whether further
proceedings were necessary. (Notice Pursuant to Pa.R.Crim.P.
907(1), filed 7/15/14, at 19–20). Appellant failed to respond.
Hence, this claim must fail.
4
See Notice Pursuant to Pa.R.Crim.P. 907(1), filed
7/15/14, at 10–19.
PCRA Court Opinion, 4/22/15, at 6–7.
Having considered the record in the light most favorable to the
Commonwealth as the prevailing party, we conclude that the evidence of
record supports the conclusions of the PCRA court and that its ruling is free
of legal error. Appellant did not present in his petition or in a response any
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issue of fact, which, if resolved in his favor, would justify relief; nor did he
identify witnesses and request an evidentiary hearing in either his petition or
in a response to the PCRA court’s Rule 907 notice. Thus, because
Appellant’s petition did not raise genuine issues of material fact, the PCRA
court did not err in denying the petition without an evidentiary hearing.
Pa.R.Crim.P. 909(B); Simpson, 66 A.3d at 260-261.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/16/2015
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