J-S56021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CHRISTOBAL R. RUIZ

                            Appellant                 No. 2091 MDA 2015


               Appeal from the Order Entered November 4, 2015
                 In the Court of Common Pleas of Berks County
              Criminal Division, at No(s): CP-06-CR-0004826-2002
                                           CP-06-CR-0005250-2002.


BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.

MEMORANDUM BY PANELLA, J.                            FILED AUGUST 26, 2016

        Christobal R. Ruiz (“Appellant”) appeals from the order dismissing his

timely petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

        On May 7, 2003, Appellant was found guilty, at two separate dockets,

of burglary and related crimes. Concluding that Appellant had two prior

convictions for crimes of violence, the trial court subsequently imposed a life

sentence pursuant to Pennsylvania’s “three strikes law.” 42 Pa.C.S.A. §

9714(a)(2). In doing so, the trial court determined that the otherwise

applicable mandatory twenty-five year sentence was “insufficient to protect

the public safety.” Id. Following the denial of his post-sentence motions,
____________________________________________



    Former Justice specially assigned to the Superior Court.
J-S56021-16



Appellant filed an appeal to this Court. In an unpublished memorandum filed

on June 6, 2004, this Court affirmed Appellant’s judgment of sentence, and

our Supreme Court denied Appellant’s petition for allowance of appeal on

March 2, 2006.

      Appellant filed a pro se PCRA petition in October 2006. After multiple

continuances and several substitutions of counsel, PCRA counsel filed an

amended PCRA petition and the PCRA court reinstated Appellant’s appellate

rights, nunc pro tunc. Thereafter, Appellant filed a timely appeal. In an

unpublished memorandum filed on November 11, 2009, we rejected

Appellant’s claims, including his challenge to the trial court’s discretion by

imposing a life sentence and affirmed Appellant’s judgment of sentence.

After Appellant, via another PCRA petition, was granted the right to seek

allowance of appeal nunc pro tunc, our Supreme Court denied the petition on

April 5, 2011.

      Appellant filed a pro se PCRA petition on February 8, 2012. The PCRA

court appointed counsel. PCRA counsel subsequently filed a “no-merit” letter

and permission to withdraw pursuant to Commonwealth v. Turner, 544

A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.

Super. 1988) (en banc). Thereafter, the PCRA court filed notice of its intent

to dismiss Appellant’s petition without a hearing. Appellant filed a pro se




                                    -2-
J-S56021-16



response.1 By order entered on March 31, 2014, the PCRA court dismissed

Appellant’s PCRA petition and permitted counsel to withdraw. Appellant filed

a timely pro se appeal.

        In an unpublished memorandum, this Court disagreed with the PCRA

court’s conclusions, finding that Appellant raised an issue of arguable merit

in his pro se response. See Commonwealth v. Ruiz, 702 MDA 2014 (Pa.

Super., filed June 2, 2015) (Panella, J.). Specifically, the panel found that

Appellant’s challenge to the legality of his life sentence was properly raised

in a timely petition and stated that “it is at the very least an open question

whether the imposition of a life sentence under section 9714 violates a

defendant’s right to a jury trial under [Apprendi v. New Jersey, 530 U.S.

466 (2000),] and its progeny.” Id. at 4. We thus remanded the case for the

appointment of new counsel and directed new counsel to develop the

Apprendi issue, and to also “review the entire record and independently

determine whether any other issues have arguable merit.” Id. at 5.

        Upon remand, the PCRA court appointed new counsel. Counsel filed a

“Motion for New Jury Trial,” based upon Appellant’s claim that his life

sentence was imposed by the trial court in violation of his right to a jury

trial. After considering the answer filed by the Commonwealth, the PCRA

court denied Appellant’s motion. This timely appeal follows. Appellant raises

____________________________________________


1
    Appellant also filed a response to PCRA counsel’s Turner/Finley letter.




                                           -3-
J-S56021-16



the following issue: “Did the [PCRA] court err in denying the motion for new

trial based on the fact the sentence imposed was unconstitutional per

[Apprendi]?” Appellant’s Brief at 4.

       We consider Appellant’s motion for new trial based upon Apprendi as

a supplement to Appellant’s pending PCRA petition. Our standard of review is

well settled.

         Under the applicable standard of review, we must determine
       whether the ruling of the PCRA court is supported by the record
       and is free of legal error. The PCRA credibility determinations,
       when supported by the record, are binding on this Court.
       However, this Court applies a de novo standard of review to the
       PCRA court’s legal conclusions.

Commonwealth v. Spotz, 18 A.3d 244, 249 (Pa. 2011) (citations omitted).

       In rejecting Appellant’s claim that he was sentenced in violation of

Apprendi, the PCRA court properly noted that this Court rejected the exact

same     argument     raised   by   a    similarly   sentenced   defendant    in

Commonwealth v. Lane, 941 A.2d 34 (Pa. Super. 2008) (en banc). In

Lane, we stated:

              In summary, we hold that Section 9714(a)(2) does not
       require a jury determination as to the protection of public safety.
       This section only requires the showing of two prior convictions
       for crimes of violence before it affords the trial court discretion
       to impose a life sentence. Because the trial court had the
       statutory discretion, but was not mandated to impose a life
       sentence, we hold that the trial court did not err in its imposition
       of sentence. We determine that the court did not violate [Lane’s]
       constitutional rights by considering facts that were not
       considered by the jury, but properly exercised its discretion to
       consider the protection of public safety in reaching its sentencing
       decision in accordance with the precepts of Apprendi[.]
       Accordingly, we affirm the judgment of sentence.


                                        -4-
J-S56021-16



941 A.2d at 38 (footnote omitted).

       While within his brief Appellant discusses how various decisions in

several of our sister states deal with similar sentencing provisions, he does

not acknowledge this Court’s en banc decision in Lane.2 Thus, because Lane

establishes that Appellant’s right to a jury trial was not violated by the trial

court’s imposition of a life sentence pursuant to § 9714(a)(2), we affirm the

order denying post-conviction relief.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/26/2016




____________________________________________


2
   Moreover, Appellant does not provide any argument within his brief that
the United States Supreme Court’s decision in Alleyne v. U.S., 132 S.Ct.
2151 (2013), renders his life sentence illegal. Reference to Alleyne is found
only in Appellant’s quotation of a case from our sister state; a decision which
finds Alleyne inapplicable. See Appellant’s Brief at 18 (quoting State v.
Witherspoon, 329 P.3d 888 (Wash. 2014)). This Court has likewise
recognized that Alleyne is inapplicable to § 9714, since Alleyne did not
eliminate the exception for prior convictions. See, e.g., Commonwealth v.
Reid, 117 A.2d 777, 784-85 (Pa. 2015).




                                           -5-
