J-S09027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    YAMIL RUIZ-VEGA                            :
                                               :   No. 137 MDA 2017
                       Appellant

            Appeal from the PCRA Order Entered December 19, 2016
       In the Court of Common Pleas of Berks County Criminal Division at
                        No(s): CP-06-CR-0003037-2012

BEFORE:      GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

MEMORANDUM BY McLAUGHLIN, J.:                              FILED MAY 03, 2018

        Yamil Ruiz-Vega (“Ruiz-Vega”) appeals from the December 19, 2016

order dismissing his Post Conviction Relief Act (“PCRA”) petition as untimely.

We affirm.

        The history of this case is as follows. On June 5, 2013, Ruiz-Vega pled

guilty to possession with intent to deliver a controlled substance (“PWID”),

criminal conspiracy, and possession of a firearm with altered manufacturer’s

number.1 On that same day, his brother, who was his codefendant, pled guilty

to PWID, criminal conspiracy, and criminal use of communication facility.2 See

Commonwealth v. Ruiz, 131 A.3d 54, 55 (Pa.Super. 2015). The trial court

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*    Retired Senior Judge assigned to the Superior Court.

1   35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. §§ 903, and 6110.2(a), respectively.

2   35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. §§ 903, and 7512, respectively.
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sentenced both defendants on June 5, 2013. Ruiz-Vega received an aggregate

sentence of six to 17 years’ incarceration; his brother was sentenced to a total

of six to 20 years in prison. Id. The court imposed sentence on both brothers

on the PWID charge pursuant to the mandatory minimum sentence for

possession or control of a firearm at the time of the offense. See 42 Pa.C.S.A.

§ 9712.1.3 On June 18, 2013, Ruiz-Vega filed a pro se post-sentence motion,

which was denied by operation of law on October 16, 2013. He did not file a

direct appeal.

       The brothers later retained Emily Cherniack, Esquire, to represent both

of them in post-conviction proceedings. Ruiz-Vega claims on appeal that

Attorney Cherniack began representing both him and his brother at the same

time. However, the certified record contains no evidence supporting that

claim, and the trial court docket does not show that Attorney Cherniack

formally entered her appearance on his behalf.

       On June 2, 2014, Attorney Cherniack filed a timely PCRA petition on

behalf of Ruiz-Vega’s brother, arguing under Alleyne4, that his mandatory

minimum sentence was illegal. Ruiz, 131 A.3d at 56. She did not file a petition

on behalf of Ruiz-Vega at that time. The PCRA court dismissed the petition,

but in December 2015, this Court reversed. We concluded that because his
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3Held to be unconstitutional under Alleyne in Commonwealth v. Newman,
99 A.3d 86 (Pa.Super. 2014) (en banc).

4 Alleyne v. United States, 570 U.S. 99 (2013) (holding that any fact that,
by law, increases the penalty for a crime is an element that must be submitted
to the jury and found beyond a reasonable doubt).

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case was pending on direct appeal when the U.S. Supreme Court decided

Alleyne, his brother was eligible for relief under Alleyne. Id. at 59. We

therefore reversed the order denying relief, vacated the sentence, and

remanded for resentencing. Id. at 60-61. He was resentenced in April 2016

to a total of four to 10 years in prison.5

       Approximately six months after we announced our decision in his

brother’s appeal, on June 8, 2016, Attorney Cherniack filed Ruiz-Vega’s first

PCRA petition. The petition claimed that Ruiz-Vega’s mandatory minimum

sentence was illegal under Alleyne, and asserted that the petition was subject

to the time-bar exception for a newly recognized constitutional right. The

PCRA court filed and served a Notice of Intent to Dismiss pursuant to

Pa.R.Crim.P. 907, on the basis that the petition was untimely. Neither Ruiz-

Vega nor Attorney Cherniack filed any response to the Rule 907 notice, and

the trial court ultimately dismissed the petition on December 19, 2016. Ruiz-

Vega filed a timely pro se notice of appeal, and Attorney Cherniack withdrew

her appearance on his behalf. We remanded to the PCRA court for a hearing

to determine whether Ruiz-Vega wished to proceed pro se or apply for

appointment of new counsel, and after a hearing, the trial court appointed

new counsel.

       Current counsel then sent a letter to Attorney Cherniack asking for the

date on which she began to represent Ruiz-Vega, but she allegedly did not
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5 See Commonwealth v. Ruiz, No. 860 MDA                   2016,   unpublished
memorandum at 3 (Pa.Super. filed Feb. 21, 2017).

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respond. Counsel then filed a “Motion to Compel Emily Cherniack, Esquire to

Furnish Law Office File to Current Counsel for Defendant.” The PCRA court

then issued a Rule to Show Cause on Attorney Cherniack, to which she

responded that she had already provided new counsel with her complete file:

              Please accept this letter as a response to the rule to show
      cause in the above captioned matter. As you are aware, I
      represented Mr. Ruiz’s brother Jorge Ruiz, who was able to
      successfully obtain a new sentencing hearing based on changed
      [sic] in the law. Yamil Ruiz, was Mr. Jorge Ruiz’s co-defendant,
      and hired me to litigate the same issue on his behalf in a PCRA
      petition. I was not his lawyer in the trial court and did not have
      trial file. Most of the documents that I have are part of the court
      file. In addition, Mr. Jorge’s Ruiz’s case resulted in a published
      opinion by the Superior Court and is also available to the public.

             Although it is not much, I have mailed whatever documents
      that I have to Mr. Deming today.

Emily Cherniack Correspondence, 8/16/17.

      Current PCRA counsel alleges that the enclosures with this letter did not

contain a written fee agreement, correspondence with Ruiz-Vega, or any other

evidence of the date on which Attorney Cherniack began to represent Ruiz-

Vega. Ruiz-Vega’s Br. at 9. However, current counsel did not ask the PCRA

court to order further relief, and the court did not do so sua sponte. Nor did

current counsel seek leave to file a nunc pro tunc response to the Rule 907

notice.

      On appeal, Ruiz-Vega raises two issues for our review:

      1. Did the PCRA court err in dismissing the appellant’s PCRA
         petition and not granting him a new sentencing hearing given
         the holding in Alleyne v. United States, 133 S.Ct. 2151, 186


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            L.Ed.2d 314 (2013) and given the fact that the appellant’s
            brother/co-defendant was granted such relief?

      2. Did the trial court err in dismissing the appellant’s PCRA
         petition given that his lawyer abandoned him by representing
         him during the timeframe in which she could have filed a timely
         petition, but waiting to file such a petition after the one year
         deadline?

Ruiz-Vega’s Br. at 4.

      Ruiz-Vega argues that, like his brother, he is entitled to resentencing

pursuant to Alleyne, and the trial court erred in denying him that relief. He

also maintains that PCRA counsel Emily Cherniack was ineffective because she

abandoned him by failing to file a timely PCRA petition raising his Alleyne

claim. He contends that it is fundamentally unfair to award his brother such

relief yet deny it to him on the ground that his PCRA petition was untimely.

He argues that if no presently existing timeliness exception excuses his late

petition,    we   should   “extend   the   law”   or   “create   another   exception

. . . .” Ruiz-Vega’s Br. at 17.

      We affirm the dismissal of the petition on untimeliness grounds. All

claims cognizable under the PCRA must be filed within one year of the date

the judgment becomes final unless a statutory exception to the one-year time

bar applies. 42 Pa.C.S.A. § 9545(b). A judgment becomes 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 direct review. 42 Pa.C.S.A. § 9545(b)(3).




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       A PCRA petitioner who files a PCRA petition after the one-year deadline

may still obtain relief if he or she pleads and proves one of the three statutory

exceptions to the time bar:

       (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.A. § 9545(b)(1)(i)-(iii). A petitioner must raise the exception within

60 days of the date on which it could have first been raised. 42 Pa.C.S.A. §

9545(b)(2).

       Ruiz-Vega’s PCRA petition was patently untimely. His judgment of

sentence became final on November 15, 2013, after his time to appeal to this

Court expired. See Pa.R.A.P. 903(a) (notice of appeal must be filed within 30

days after entry of order from which the appeal is taken). He thus had until

November 17, 20146 to file a PCRA petition. The instant petition was filed on


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6 One year from November 15, 2013 was November 15, 2014. However that
day fell on a Saturday. See 1 Pa.C.S.A. § 1908 (providing that when a
statutory filing deadline falls on a Saturday, Sunday, or holiday, the deadline
will be extended to the next business day).

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June 8, 2016, approximately a year and a half after the one-year deadline. It

was therefore untimely, and the PCRA court lacked jurisdiction, unless Ruiz-

Vega pleaded and proved that one of the exceptions applied. See

Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999); Commonwealth

v. Derrickson, 923 A.2d 466, 468 (Pa.Super. 2007).

       He did not, and he concedes as much. Although his PCRA petition

claimed eligibility for the exception for new constitutional rights, he does not

argue that exception on appeal, and for good reason. He did not assert the

claim within 60 days of when we announced our decision in his brother’s

appeal. He instead contends in this appeal that we should allow his untimely

petition because his brother obtained relief, Attorney Cherniack abandoned

him during PCRA proceedings by failing to file a timely petition, and

“fundamental fairness” requires us to extend existing law or create new law

to allow him access to the same relief. Ruiz-Vega’s Br. at 16-17.

       These arguments are meritless. The General Assembly did not write the

PCRA to include a time-bar exception for “fundamental unfairness,” and we

are not empowered to engraft a new exception onto the statute. See

Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011).7 Moreover, Ruiz-

Vega is in a different position than his brother because his brother filed a



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7“[The PCRA] confers no authority upon this Court to fashion ad hoc equitable
exceptions to the PCRA time-bar in addition to those exceptions expressly
delineated in the Act.” Watts, 23 A.3d at 983 (citation omitted).

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timely PCRA petition. It is therefore not fundamentally unfair to treat him

differently than his brother.

      Reading Ruiz-Vega’s brief broadly, he also seems to be contending that

Attorney Cherniack’s abandonment of him excuses his late filing. Although

counsel’s abandonment under certain circumstances can amount to a “newly

discovered fact” sufficient to toll the time-bar, the petitioner must still raise

the claim in the first instance in the trial court. See Commonwealth v.

Bennett, 930 A.2d 1264, 1274 (Pa. 2007). A PCRA petitioner can raise the

issue in response to a Rule 907 notice. See Commonwealth v. Pitts, 981

A.2d 875, 880 n.4 (Pa. 2009). Ruiz-Vega’s failure to do so amounts to waiver

here. We therefore affirm the order dismissing his PCRA petition as untimely.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/2018




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