J-S16015-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 702 MDA 2014


                Appeal from the PCRA Order March 31, 2014
               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: PANELLA, J., OLSON, J., and OTT, J.

MEMORANDUM BY PANELLA, J.                             FILED JUNE 02, 2015

      Appellant, Christobal R. Ruiz, appeals pro se from the order denying

his petition pursuant to the Post Conviction Relief Act (“PCRA”). Ruiz argues

that the PCRA court erred in concluding that none of his various allegations

of ineffectiveness of counsel merited relief.   Of particular relevance to our

resolution of this appeal, Ruiz asserts that PCRA counsel was improperly

allowed to withdraw before the PCRA court. After careful review, we vacate

and remand for appointment of new PCRA counsel.

      After a jury convicted Ruiz of burglary, the trial court imposed a life

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

9714, concluding that Ruiz had two prior convictions for crimes of violence
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and that a 25-year sentence was not adequate to protect the public. Ruiz

filed post-sentence motions that the trial court denied.

      Ruiz filed a timely notice of appeal, but counsel failed to file a timely

concise statement of matters complained of on appeal, and this Court held

all issues waived.    Ruiz’s counsel sought permission to file a concise

statement nunc pro tunc, which the trial court denied. We affirmed the trial

court’s order, and the Supreme Court of Pennsylvania denied Ruiz’s petition

for allowance of appeal on March 2, 2006.

      Shortly thereafter, Ruiz filed a pro se petition for PCRA relief.    The

PCRA court ultimately restored Ruiz’s direct appellate rights nunc pro tunc.

We affirmed the judgment of sentence, and the Supreme Court of

Pennsylvania denied allowance of appeal on April 5, 2011.

      On February 8, 2012, Ruiz filed the instant pro se PCRA petition. The

PCRA court appointed counsel to represent Ruiz and counsel was given an

opportunity to file an amended petition. Instead, on July 30, 2013, counsel

sought leave of court to withdraw, opining that there were no meritorious

issue of record. Ruiz filed a typewritten, single space, 30 page response to

counsel’s no-merit letter, requesting appointment of new counsel. The PCRA

court granted counsel permission to withdraw, and dismissed Ruiz’s petition.

This timely appeal followed.

      As noted previously, Ruiz raises a variety of issues with the PCRA

court’s decision. However, we will address only one issue, as we conclude


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that Ruiz correctly identified, in his response to counsel’s petition to

withdraw, an issue of arguable merit raised by his pro se petition. As Ruiz is

entitled to counsel, we remand for the appointment of new counsel to

develop this issue, and independently review the other issues raised by Ruiz.

      “Other than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v.

New Jersey, 530 U.S. 466, 490 (2000). The United States Supreme Court

has stated that “the statutory maximum for Apprendi purposes is the

maximum sentence a judge may impose solely on the bases of the facts

reflected in the jury verdict or admitted by the defendant.” Blakely v.

Washington, 542 U.S. 296, 303-304 (2004). As early as 2004, this Court

recognized that Apprendi and its progeny called the life sentence provisions

of the three strikes law “into serious question.”       Commonwealth v.

Guilford, 861 A.2d 365, 376 n. 3 (Pa. Super. 2004).

      In the instant pro se PCRA petition, Ruiz asserted that appellate

counsel was ineffective, in 2008, for failing to argue that his life sentence

violated his right to a jury trial.   See PCRA petition, filed 10/25/10, at

additional page 11, paragraph 3. Ruiz also advanced this argument in his

letter in opposition to counsel’s petition to withdraw.      See Petitioner’s

Objections to Appointed Counsel’s No-Merit Letter Seeking Leave to

Withdraw From Case, filed 9/9/13, at 6.


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      We are unable to agree with appointed, now withdrawn, counsel and

the PCRA court that this issue lacks arguable merit.         The legality of the

sentence imposed is a reviewable issue pursuant to a timely filed PCRA

petition.     See Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999).

Furthermore, as set forth above, 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 and its progeny. Contrary

to the PCRA court’s discussion, this issue was not before the Pennsylvania

Supreme Court in Commonwealth v. Gordon, 942 A.2d 174 (Pa. 2007).

      The Superior Court found no support in the record to conclude
      that Appellant, who would be at an advanced age upon
      completion of all his sentences, would be a threat to public
      safety upon completion of his various sentences and that issuing
      a life sentence was an abuse of discretion.        Indeed, the
      Commonwealth conceded that the life sentence was unsupported
      by the record. As such, the life sentence was vacated, and the
      matter was remanded.FN8

            FN8. Judge Todd filed a concurring memorandum in which
            she opined that the life sentence did not constitute an abuse
            of discretion; she found that the sentence imposed had
            sound reasoning. Nevertheless, Judge Todd concurred with
            the majority that the sentence should be vacated because,
            in her view, Appellant’s argument was correct that Section
            9714 violated the right to trial by jury under the Apprendi
            line of cases “to the extent that it permits a trial court to
            sentence a defendant to life imprisonment if the trial court,
            as opposed to a jury, determines that a sentence of twenty-
            five years imprisonment is insufficient to protect the public
            safety.” Since Appellant’s life sentence was vacated and
            Appellant did not pursue this argument in his Petition for
            Allowance of Appeal, the concerns raised in Judge Todd’s
            concurring opinion are not at issue here.

Id., at 179.

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      As Ruiz has successfully established that appointed counsel was

permitted to withdraw improperly, we remand for appointment of new

counsel. Counsel is to develop this issue, as well as review the entire record

and independently determine whether any other issues have arguable merit.

Counsel may then pursue any appropriate action before the PCRA court.

      Order vacated. Case remanded for appointment of new counsel and

further   proceedings   consistent   with   this   memorandum.    Jurisdiction

relinquished.

      Judge Olson joins in the memorandum.

      Judge Ott concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/2/2015




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