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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 filed July 13, 2010) (unpublished memorandum at 1–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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