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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                       Appellant        :
                                        :
                  v.                    :          No. 860 MDA 2016
                                        :
JORGE LUIS RUIZ, JR.                    :


           Appeal from the Judgment of Sentence, April 26, 2016,
               in the Court of Common Pleas of Berks County
             Criminal Division at No. CP-06-CR-0003038-2012


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED FEBRUARY 21, 2017

      This is a Commonwealth appeal from the judgment of sentence of

April 26, 2016, following this court’s remand for resentencing. We affirm.

      Jorge Luis Ruiz, Jr. (“Ruiz”), was originally sentenced on June 5, 2013,

pursuant to a negotiated guilty plea, to an aggregate term of 6 to 20 years’

incarceration. Ruiz pled guilty to one count each of possession with intent to

deliver a controlled substance (“PWID”) -- cocaine, criminal use of a

communications facility, and criminal conspiracy to commit PWID.1            In

exchange for Ruiz’s guilty plea, the remaining charges were withdrawn.

Ruiz’s sentence included a mandatory minimum sentence of 5 to 10 years’



* Former Justice specially assigned to the Superior Court.
1
  35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 7512, and 18 Pa.C.S.A. § 903,
respectively.
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imprisonment for PWID pursuant to 42 Pa.C.S.A. § 9712.1 (controlled

substances in close proximity to firearms).      No direct appeal was filed;

however, Ruiz filed a timely PCRA2 petition, which was denied.         In his

petition, Ruiz argued that his mandatory minimum sentence for PWID was

illegal under Alleyne v. United States,            U.S.      , 133 S.Ct. 2151

(2013), and subsequent Pennsylvania case law.        See Commonwealth v.

Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc), appeal denied, 121

A.3d 496 (Pa. 2015) (Alleyne rendered Section 9712.1 unconstitutional in

its entirety).

        In a published opinion, this court reversed and vacated Ruiz’s

judgment of sentence, agreeing with Ruiz that application of the mandatory

minimum sentencing statute was illegal.       Commonwealth v. Ruiz, 131

A.3d 54, 60 (Pa.Super. 2015).         This court remanded for resentencing

without consideration of the mandatory minimum sentencing provision of

42 Pa.C.S.A. § 9712.1. Id.3 The Commonwealth did not appeal this court’s

decision in Ruiz.


2
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
3
  This court also distinguished Commonwealth v. Miller, 102 A.3d 988
(Pa.Super. 2014) (Alleyne does not satisfy the new retroactive
constitutional right exception to the PCRA’s one-year time-bar), and
Commonwealth v. Riggle, 119 A.3d 1058 (Pa.Super. 2015) (declining to
give Alleyne retroactive effect to cases on timely collateral review when the
defendant’s judgment of sentence was finalized before Alleyne was decided
on June 17, 2013), where Ruiz’s judgment of sentence was not yet final
when Alleyne was handed down.                 Ruiz, 131 A.3d at 58-59.
Cf. Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016) (Alleyne


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      Ruiz was resentenced on April 26, 2016, before the Honorable

Stephen B. Lieberman.      Importantly, while the Commonwealth requested

that the trial court re-impose the original negotiated sentence of 6 to

20 years’ imprisonment, both parties characterized it as an “open plea.”

(Notes of testimony, 4/26/16 at 3-6.)       At no time did the Commonwealth

indicate that Judge Lieberman was legally bound to impose the same

sentence.   Defense counsel presented letters from Ruiz’s family and Ruiz

also testified.   (Id. at 6-8.)   Judge Lieberman resentenced Ruiz to 4 to

10 years’ imprisonment, which was at the bottom of the standard range of

the guidelines. Judge Lieberman considered the fact that Ruiz has continued

to be involved in his children’s lives, despite the significant obstacle of his

incarceration, and has taken advantage of numerous rehabilitative programs

while incarcerated.     (Id. at 9.)   Ruiz did not receive any misconduct

violations during the nearly four years he has been incarcerated.      (Id. at

7-8.) Judge Lieberman also noted that Ruiz took responsibility for his part in

the drug distribution operation, although many other people were involved,

including people higher up than Ruiz. (Id. at 9.)




was not a groundbreaking, “watershed” rule of criminal procedure that
applies retroactively on collateral review to cases where the defendant’s
judgment of sentence had already become final before Alleyne was
decided). Washington did not consider the unique procedural posture
presented in Ruiz, where a defendant raises an Alleyne challenge in a
timely PCRA petition but his judgment of sentence was not yet final at the
time Alleyne was handed down.


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      The Commonwealth filed a motion for reconsideration of Ruiz’s

sentence, in which it alleged that “additional evidence would persuade this

Honorable Court not to disturb the original, negotiated plea of 6-20 years[’]

incarceration in a State Correctional Institute.” (Commonwealth’s motion for

reconsideration, 5/17/16 at 3, ¶14; docket #72.)4          According to the

Commonwealth, if a hearing were granted on the Commonwealth’s motion,

Detectives James Gresh and Pasquale Leporace would testify that Ruiz was a

“main player” in a major drug operation and poses a threat to the

community.     (Id. at 2, ¶13.)   The Commonwealth also noted that the

original negotiated sentence was within the standard range of the sentencing

guidelines. (Id. at 2, ¶12.)

      The Commonwealth’s motion was denied the following day, May 18,

2016. Notice of appeal was filed on May 26, 2016. On June 6, 2016, the

Commonwealth was ordered to file a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b) within 21 days and timely




4
   The Commonwealth’s motion for reconsideration was untimely.           See
Pa.R.Crim.P. 721(B)(1) (“A Commonwealth motion for modification of
sentence shall be filed no later than 10 days after imposition of sentence.”).
Nevertheless, the Commonwealth filed a notice of appeal within 30 days
after resentencing; therefore, there is no jurisdictional impediment to our
review. Pa.R.A.P. 903. Cf. Commonwealth v. Ledoux, 768 A.2d 1124,
1125 (Pa.Super. 2001) (Commonwealth’s untimely post-sentence motion did
not toll the 30-day appeal period).


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complied on June 8, 2016.     (Docket #75, 76.)     On July 7, 2016, the trial

court filed a Rule 1925(a) opinion. (Docket #77.)5

      The Commonwealth has presented the following issue for this court’s

review:

            Did the trial court err by resentencing [Ruiz] on all
            counts to which he pleaded, contrary to the terms of
            the negotiated plea agreement, as [Alleyne] only
            invalidated the sentence for which the mandatory
            minimum sentence was imposed?

Commonwealth’s brief at 6.

      We find the Commonwealth’s issue on appeal to be waived and

unreviewable on several bases.       First, the Commonwealth characterizes

Ruiz’s sentence as “illegal,” but cites no authority for that proposition. It is

true that both sides to a negotiated sentence are ordinarily entitled to the

benefit of their bargain.   See, e.g., Commonwealth v. Anderson, 995

A.2d 1184, 1191 (Pa.Super. 2010), appeal denied, 9 A.3d 626 (Pa. 2010)

(“Assuming the plea agreement is legally possible to fulfill, when the parties

enter the plea agreement on the record, and the court accepts and approves

the plea, then the parties and the court must abide by the terms of the

agreement.” (citation omitted) ). However, it is also true that a defendant

cannot agree to an illegal sentence. See Commonwealth v. Gentry, 101



5
  In his Rule 1925(a) opinion, Judge Lieberman opines that the appeal
should be dismissed for failure to obtain a transcript of the April 26, 2016
resentencing hearing. (Trial court opinion, 7/7/16 at 2-3.) The certified
record indicates that the transcript was filed on September 16, 2016.


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A.3d 813, 819 (Pa.Super. 2014) (“Our cases clearly state that a criminal

defendant cannot agree to an illegal sentence, so the fact that the illegality

was a term of his plea bargain is of no legal significance.” (citation

omitted)). As described above, this court in Ruiz already determined that

application of the mandatory minimum under Section 9712.1, which was

part of Ruiz’s bargained-for sentence, was illegal.

      Furthermore, the Commonwealth could have pressed this issue at

resentencing and did not. While the Commonwealth requested that the trial

court re-impose the identical 6 to 20-year sentence on remand, it never

characterized it as a contractual issue or suggested that the trial court

lacked discretion in resentencing Ruiz. In fact, all parties appeared to agree

that Ruiz’s plea was now an “open plea” vis-à-vis sentencing.          (Notes of

testimony, 4/26/16 at 6.)

      The Commonwealth effectively concedes as much in its brief on

appeal, but argues that its motion for reconsideration preserved the issue.

(Commonwealth’s brief at 15 n.4.) However, as noted above, the motion for

reconsideration was untimely as it was filed beyond 10 days. In addition,

from our review of the Commonwealth’s motion, it simply argued that Ruiz’s

sentence was inappropriate under the circumstances as he was a dangerous

offender.   While the Commonwealth observed that the original, negotiated

sentence    was   within    the   standard   range    of   the   guidelines,   the




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Commonwealth never argued that the trial court remained legally bound by

it. (Docket #72.) Therefore, we consider the matter to be waived.

      We make several observations regarding the first appeal from the

denial of Ruiz’s PCRA petition. A different panel of this court addressed the

issue of Ruiz’s sentence and remanded for resentencing, the only restriction

being that the trial court was not to consider the mandatory sentencing

provision.   Under the law of the case,6 it is doubtful that this panel could

revisit the matter and decide that the trial court is bound by the parties’



6
             Three “related but distinct” rules comprise the Law of
             the Case Doctrine:

                  (1) upon remand for further proceedings,
                  a trial court may not alter the resolution
                  of a legal question previously decided by
                  the appellate court in the matter;
                  (2) upon     a    second     appeal,    an
                  appellate court may not alter the
                  resolution of a legal question
                  previously decided by the same
                  appellate court; and (3) upon transfer
                  of a matter between trial judges of
                  coordinate jurisdiction, the transferee
                  trial court may not alter the resolution of
                  a legal question previously decided by
                  the transferor trial court.

Commonwealth v. Lancit, 139 A.3d 204, 207 (Pa.Super. 2016), quoting
Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995) (emphasis in
Lancit) (citations omitted). “The Law of the Case Doctrine is an important
tool of judicial efficiency that ‘serves to protect the expectations of the
parties, to insure uniformity of decisions, to maintain consistency in
proceedings, to effectuate the administration of justice, and to bring finality
to the litigation.’” Id. at 206-207, quoting Zane v. Friends Hosp., 836
A.2d 25, 29 (Pa. 2003).


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earlier plea agreement, or that the trial court should only have resentenced

Ruiz on the PWID count, as the Commonwealth now argues in the instant

appeal. It is well settled that an appellate court may not alter the resolution

of a legal question previously decided by the same appellate court.

      Relatedly, we have reviewed the Commonwealth’s brief in the first

appeal, and the Commonwealth never argued, in the alternative, that the

negotiated sentence of 6 to 20 years still remained in full force and effect or

that, at most, the case should be remanded for resentencing only on the

PWID charge. The Commonwealth only argued that Alleyne did not apply

retroactively to cases on collateral appeal.     Nor did the Commonwealth

appeal this court’s decision to the Pennsylvania Supreme Court. This issue

could have been litigated in the first appeal, and the Commonwealth chose

not to raise it. We will not entertain the argument now. See Kurns v. Soo

Line R.R., 72 A.3d 636, 639 (Pa.Super. 2013), appeal denied, 89 A.3d

1285 (Pa. 2014) (“An appellant cannot pursue in a subsequent appeal

matters which he or she could have pursued in a prior appeal.” (citations

omitted)).

      In fact, the Commonwealth would have had a valid argument for

simply invalidating the entire plea agreement and returning the parties to

the status quo prior to the entry of the guilty plea by vacating the plea. See

Commonwealth       v.   Melendez-Negron,       123   A.3d   1087,   1093-1094

(Pa.Super. 2015) (because in plea negotiations, “both parties to a



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negotiated plea agreement are entitled to receive the benefit of their

bargain,” “the shared misapprehension that the mandatory minimum

sentence required by § 97[12].1 applied to Melendez-Negron tainted the

parties’ negotiations at the outset. [T]he parties’ negotiations began from

an erroneous premise and therefore were fundamentally skewed from the

beginning.”). However, the Commonwealth did not make that argument.

     In short, the numerous procedural missteps in this case foreclose

appellate review of the issues raised in the Commonwealth’s argument. As

such, we will affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/21/2017




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