Com. v. Ramos, J. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAVIER RAMOS :
:
Appellant : No. 2661 EDA 2019
Appeal from the PCRA Order Entered August 14, 2019
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0002292-2012
BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY NICHOLS, J.: FILED JULY 24, 2020
Appellant Javier Ramos appeals pro se from the order denying his first
Post Conviction Relief Act1 (PCRA) petition. Appellant raises several
challenges to the effectiveness of prior counsel. For the reasons set forth
below, we affirm.
We state the facts as set forth in this Court’s prior decision:
In summary, [Appellant] and a co-defendant, David Lafantano,
committed a series of burglaries in Lehigh and Northampton
Counties in February and March of 2012. [Appellant] was
originally charged, at Docket No. 2292-2012, with a March 12,
2012, attempted break-in at a home in Breiningsville,
Pennsylvania. That arrest led to information regarding other
crimes, and [Appellant] was subsequently charged at Docket No.
2296-2012, with burglaries committed in Bethlehem and Upper
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
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Saucon Township in February of 2012. The cases were
consolidated for trial.[2] On December 12, 2012, a jury found
[Appellant] guilty of four offenses at Docket No. 2292-2012,
including attempted burglary, and seven offenses at Docket No.
2296-2012, including burglary, receiving stolen property (two
counts), and criminal conspiracy. On January 31, 2013, the trial
court imposed an aggregate sentence of 18 to 42 years’
imprisonment.[3] [Appellant] filed a post-sentence motion, which
the court denied, followed by a timely appeal. On November 25,
2014, a panel of this Court affirmed the judgment of sentence on
direct appeal, and the Pennsylvania Supreme Court denied his
petition for allowance of appeal.
Commonwealth v. Ramos, 470 EDA 2018, 2019 WL 168026, *1 (Pa. Super.
filed Jan. 11, 2019) (unpublished mem.) (citations and footnotes omitted).
The subsequent procedural history is somewhat extensive, but simply,
Appellant filed a pro se PCRA petition and several amended petitions. In
relevant part, one of Appellant’s amended petitions stated that Appellant’s
“mandatory sentences” were unconstitutional under Alleyne v. United
States, 570 U.S. 99 (2013), and therefore Appellant “would like to seek relief
for [his] unconstitutional mandatory illegal excessive sentencing.” Appellant’s
Am. PCRA Pet., 8/7/14.
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2 David Ritter, Esq. was Appellant’s trial and direct appeal counsel.
3In relevant part, the attempted burglary, burglary, and conspiracy conviction
were graded as felony one, and the receiving stolen property conviction was
graded as a felony three. Docket No. 2292-2012; Docket No. 2296-2012.
“The sentence imposed [on Appellant] was a departure from the sentencing
guidelines and was beyond the aggravated range.” Commonwealth v.
Ramos, 1215 EDA 2013, 2014 WL 10558247, *13 (Pa. Super. filed Nov. 25,
2014) (unpublished mem.).
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The PCRA court appointed Robert Long, Esq., as PCRA counsel. Ramos,
2019 WL 168026 at *2. Attorney Long filed a Turner/Finley4 petition to
withdraw, and the PCRA court granted the petition to withdraw. Id.; Attorney
Long’s Mot. to Withdraw, 6/15/16. The PCRA court subsequently issued a
Pa.R.Crim.P. 907 notice, Appellant filed a pro se response, and the PCRA court
dismissed Appellant’s first PCRA petition. Ramos, 2019 WL 168026 at *2.
Pro se Appellant appealed, and he argued that Attorney Long’s petition
to withdraw was defective. Id. at *3. The Ramos Court agreed, vacated the
order dismissing Appellant’s first PCRA petition, instructed the PCRA court to
appoint new PCRA counsel, and ordered new PCRA counsel to file an amended
PCRA petition or a Turney/Finley petition to withdraw. Id.
On March 20, 2019, the PCRA court appointed Matthew Rapa, Esq., as
Appellant’s new PCRA counsel. On May 13, 2019, Attorney Rapa filed a
Turner/Finley petition to withdraw and no-merit letter. In relevant part,
Attorney Rapa’s no-merit letter listed Appellant’s sentences and stated that
Appellant had a prior record score of five:
In total you received an aggregate sentence of 18 to 42 years.
Although your sentence exceeded the aggravated ranges of the
sentence guidelines, you did not receive any mandatory minimum
sentences in violation of Alleyne v. United States [as set forth
in Appellant’s amended PCRA petition]. Additionally, [the trial
court] set forth reasons during your sentencing hearing why
imposed a sentence beyond the aggravated range of the
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4Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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Pennsylvania Sentence [sic] Guidelines. None of your sentences
exceeded the statutory maximum penalties provided by the law.
Because trial judges are afforded a great deal of discretion when
imposing a sentence and [the trial court] cited reasons for
sentencing you outside the sentencing guidelines, I find no legal
merit to your claim that you received an illegal sentence.
No-Merit Ltr., 5/7/19, at 10. Appellant did not file a response to Attorney
Rapa’s petition and no-merit letter.
On June 18, 2019, the PCRA court conducted a hearing. 5 According to
the PCRA court’s Pa.R.A.P. 1925(b) opinion, at the hearing, the PCRA court
“put Appellant on notice of the [PCRA court’s] intent to dismiss his” amended
PCRA petition. PCRA Ct. Op., 11/5/19, at 6. After the hearing, the PCRA court
granted Attorney Rapa’s petition to withdraw and issued a Pa.R.Crim.P. 907
notice stating that Appellant failed to allege “any meritorious grounds for relief
. . . .” Pa.R.Crim.P. 907 Notice, 6/18/19. Appellant did not file a response to
the Rule 907 notice, and on August 14, 2019, the PCRA court formally
dismissed Appellant’s PCRA petition.
On August 27, 2019, Appellant timely filed a pro se notice of appeal. On
September 12, 2019, the PCRA court ordered Appellant to comply with
Pa.R.A.P. 1925(b). The order directed Appellant to comply within twenty-one
days and was addressed to Appellant’s prison address. Order, 9/12/19.
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5 The transcript of this hearing was not transmitted to this Court.
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The PCRA court docketed Appellant’s Rule 1925(b) statement on
October 16, 2019. Pa.R.A.P. 1925(b) Statement, 10/16/19. The envelope
that enclosed Appellant’s Rule 1925(b) statement was postmarked October 9,
2019, which was six days after the twenty-one day deadline, and stated “ZIP
16823,” a Pennsylvania postal code. See id. (envelope attached to Rule
1925(b) Statement).6 The PCRA court filed its Rule 1925(a) opinion on
November 5, 2019, which did not address the timeliness of Appellant’s Rule
1925(b) statement.7
Appellant raises the following issues:
1. Whether the PCRA court abused its discretion or committed an
error of law by denying [Appellant’s] post-conviction relief act
petition without a hearing?
2. Whether the PCRA court abused its discretion or committed an
error of law by denying [Appellant’s] post-conviction relief act
petition without a hearing where court appointed counsel was
ineffective?
Appellant’s Brief at 2.
We initially address the filing of Appellant’s pro se Rule 1925(b)
statement. In Commonwealth v. Boniella, 158 A.3d 162 (Pa. Super. 2017),
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6The Rule 1925(b) statement and proof of service have a handwritten date of
“9-29-19.” The record does not contain any other documentation of proof of
mailing, cash slip, or delivery to prison officials.
7We note that the PCRA court’s Rule 1925(a) opinion misstated the date that
Appellant filed his notice of appeal.
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this Court addressed whether it should consider the pro se defendant’s Rule
1925(b) statement, which was filed one day late. Boniella, 158 A.3d at 164.
We have stated that where the trial court addresses the issues
raised in an untimely Rule 1925(b) statement, we need not
remand but may address the issues on their merits.
Commonwealth v. Brown, 145 A.3d 184, 186 (Pa. Super.
2016). See also Commonwealth v. Burton, 973 A.2d 428, 433
(Pa. Super. 2009) (en banc) (“If there is an untimely filing, this
Court may decide the appeal on the merits if the trial court had
adequate opportunity to prepare an opinion addressing the issues
being raised on appeal”).
Critically, however, we note that Brown and Burton apply to
counseled defendants, rather than those proceeding pro se. This
is because counsel can be considered to be ineffective per se for
failing to file a timely Rule 1925(b) statement. See Pa.R.A.P.
1925(c)(3) (“If an appellant in a criminal case was ordered to file
a Statement and failed to do so, such that the appellate court is
convinced that counsel has been per se ineffective, the appellate
court shall remand for the filing of a Statement nunc pro tunc.”);
see also Burton, 973 A.2d at 433 (untimely filing of Rule 1925(b)
statement by counsel is per se ineffectiveness). Accordingly, we
consider untimely counseled Rule 1925(b) statements on the basis
of judicial economy. See Comment to Ra.R.A.P. 1925(c)(3).
It is a longstanding principle that a pro se litigant cannot be
ineffective on his or her own behalf. See Commonwealth v.
Fletcher, 604 Pa. 493, 517, 986 A.2d 759, 773 (2009) (“The law
prohibits a defendant who chooses to represent himself from
alleging his own ineffectiveness.”). Thus, our rationale for
considering an untimely Rule 1925(b) statement disappears
where it is filed by a pro se litigant. Therefore, we are constrained
to find that the defendant’s issues are waived in the instant
matter.
Boniella, 158 A.3d at 164 (some formatting altered).
Instantly, Appellant’s envelope containing his pro se Rule 1925(b)
statement was postmarked October 9, 2019, which was six days after the
twenty-one day deadline expired, and had the zip code of 16823, a
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Pennsylvania zip code. See Pa.R.A.P. 1925(b) Statement (envelope attached
to statement). Here, like the defendant in Boniella, Appellant is pro se and
untimely filed his Rule 1925(b) statement. See Boniella, 158 A.3d at 164.
The record does not contain any other information as to when Appellant
delivered the statement to prison officials for mailing.8 Therefore, identical to
the Boniella Court, “we are constrained to find that [Appellant’s] issues are
waived in the instant matter.” See id.
But even if we were to consider Appellant’s issues, he has waived them
for the reasons set forth below. We begin by summarizing Appellant’s
arguments in support of both of his issues. In support of his first issue,
Appellant argues that he raised the following claims in his amended PCRA
petition:
1) [Attorney Ritter] failed to conduct a proper investigation; 2)
[Attorney Ritter] failed to properly obtain discovery and
investigate eyewitnesses; 3) [Attorney Ritter] failed to prepare
and file Pre-Trial Motions; 4) [Attorney Ritter] failed to
communicate with [Appellant]; 5) [Attorney Ritter] provided
ineffective representation during [Appellant’s] trial; 6) [Attorney
Ritter] failed to file Post-Sentence Motions; 7) [Attorney Ritter]
was ineffective for failing to retain an audio forensic expert; 8)
[Attorney Ritter] was ineffective [as appellate counsel]; 9)
Prosecutorial Misconduct; 10) Legality of [Appellant’s] sentence.
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8We note Appellant’s brief states that the PCRA court issued its Rule 1925(b)
order on September 12, 2019, and that he “filed his Concise Statement on
10/16/19.” Appellant’s Brief at 6.
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Id. at 8-9; see also No-Merit Ltr., 5/7/19, at 1 (listing Appellant’s issues).
Appellant asserts that Attorney Ritter “rendered ineffective assistance,” as
well as both of his appointed PCRA counsel. Id. at 9. In Appellant’s view,
“[a]ll issues raised provides the material fact that [Attorney Ritter] rendered
ineffective assistance,” and therefore the PCRA court should have ordered a
hearing. Id.
Appellant similarly contends, in support of his second issue, that his
“amended PCRA petition” averred material facts.9 Id. at 11. Appellant asserts
that at the June 18, 2019 hearing, Attorney Rapa “refused to argue and pursue
what he believed [were] the best claims raised [in] Appellant’s PCRA petition,
specifically counts 6, 7, 8, and 9.” Id. In Appellant’s view, the PCRA court
should have ordered an evidentiary hearing to address Attorney Ritter’s and
Attorney Rapa’s ineffective assistance of counsel. Id. at 12.
We state the standard of review:
This Court’s standard of review regarding an order denying
a petition under the PCRA is whether the determination of
the PCRA court is supported by the evidence of record and
is free of legal error. The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the
certified record.
Commonwealth v. Colon, ___ A.3d ___, ___, 2020 Pa. Super. 43, 2020 WL
856453, *3 (Pa. Super. filed Feb. 21, 2020) (citation omitted). Further,
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9 Appellant did not specify which of his amended PCRA petitions.
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“[b]oilerplate allegations of ineffectiveness do not establish a defendant’s
burden of establishing relief.” Id. at *4 (citation omitted). We note that “a
petitioner waives issues of PCRA counsel’s effectiveness regarding
Turner/Finley requirements if he declines to respond to the PCRA court’s
notice of intent to dismiss.” Commonwealth v. Rykard, 55 A.3d 1177, 1186
(Pa. Super. 2012) (citation omitted).
We add the following:
it is an appellant’s duty to present arguments that are sufficiently
developed for our review. The brief must support the claims with
pertinent discussion, with references to the record and with
citations to legal authorities. Citations to authorities must
articulate the principles for which they are cited. Pa.R.A.P.
2119(b).
This Court will not act as counsel and will not develop arguments
on behalf of an appellant. Moreover, when defects in a brief
impede our ability to conduct meaningful appellate review, we
may dismiss the appeal entirely or find certain issues to be
waived.
Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super. 2010) (some
citations omitted). “Although this Court is willing to liberally construe
materials filed by a pro se litigant, pro se status confers no special benefit
upon the appellant.” Commonwealth v. Vurimindi, 200 A.3d 1031, 1037-
38 (Pa. Super. 2018) (citation omitted), appeal denied, 217 A.3d 793 (Pa.
2019).
Here, to the extent Appellant is challenging Attorney Rapa’s
effectiveness, he waived them by not filing a response to the PCRA court’s
Rule 907 notice. See Rykard, 55 A.3d at 1186. Further, even assuming
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Appellant properly preserved the ten claims identified in his appellate brief,
we agree with the Commonwealth that Appellant failed to state any specific
facts in support in his argument section. See Vurimindi, 200 A.3d at 1037-
38; Kane, 10 A.3d at 331. Absent any discussion of those facts, we cannot
determine whether those facts were material and whether the PCRA court
erred by declining to hold an evidentiary hearing. See Colon, 2020 WL
856453 at *4. In any event, Appellant’s claims of ineffectiveness are
boilerplate, as he failed to explain for each claim how the three-prong test for
ineffective assistance of counsel was met. See id. For example, Appellant
baldly asserts that Attorney Ritter failed to conduct a proper investigation,
without explaining what a proper investigation would have uncovered, how he
was prejudiced, and how Attorney Rapa was ineffective. See Appellant’s Brief
at 8-9. For these reasons, we affirm the order below.10
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/24/20
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10To the extent Appellant preserved his claim of an illegal mandatory sentence
based on Alleyne, his claims fails because Appellant was not sentenced to
any mandatory minimum sentences. See Ramos, 2014 WL 10558247 at *13.
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