J-S53032-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
                  Appellee                :
                                          :
            v.                            :
                                          :
RENE RUIZ-MAYO,                           :
                                          :
                  Appellant               :            No. 435 MDA 2015

         Appeal from the PCRA Order entered on February 4, 2015
            in the Court of Common Pleas of Lancaster County,
           Criminal Division, No(s): CP-36-CR-0000024-2012;
           CP-36-CR-0005678-2011; CP-36-CR-0005694-2011

BEFORE: DONOHUE, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                    FILED SEPTEMBER 24, 2015

      Rene Ruiz-Mayo (“Ruiz-Mayo”) appeals, pro se, from the Order

dismissing his second Petition for relief filed pursuant to the Post Conviction

Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      On April 3, 2012, Ruiz-Mayo, represented by John E. Churchville,

Esquire (”Attorney Churchville”), entered a negotiated guilty plea to a

variety of crimes.1 The trial court accepted the negotiated plea and, on the




1
  Ruiz-Mayo pled guilty to three separate docket numbers. At docket
number 5694-2011, Ruiz-Mayo pled guilty to one count of criminal attempt
(homicide), four counts each of first-degree aggravated assault and second-
degree aggravated assault, one count of firearms without license, and two
counts of recklessly endangering another person. At docket number 5678-
2011, Ruiz-Mayo pled guilty to one count each of firearms without license
and receiving stolen property. At docket number 24-2012, Ruiz-Mayo pled
guilty to one count each of delivery of cocaine and criminal use of a
communication facility.
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same date, imposed an aggregate prison sentence of twenty-five to fifty

years. Ruiz-Mayo did not file a direct appeal.

      Ruiz-Mayo filed his first PCRA Petition on June 25, 2012.    The PCRA

court appointed Christopher P. Lyden, Esquire (“Attorney Lyden”), as Ruiz-

Mayo’s counsel. Counsel filed a Turner/Finley2 no-merit letter and Petition

to Withdraw. The PCRA court issued a Pa.R.Crim.P. 907 Notice of intent to

dismiss the petition, and Ruiz-Mayo did not file a response. The PCRA court

granted Attorney Lyden’s Petition to Withdraw and dismissed the PCRA

Petition on March 21, 2013. Ruiz-Mayo did not file a Notice of Appeal.

      Ruiz-Mayo filed the instant PCRA Petition on July 10, 2014. The PCRA

court appointed Vincent J. Quinn, Esquire (“Attorney Quinn”), as Ruiz-Mayo’s

counsel. Attorney Quinn filed a Turner/Finley no-merit letter and Petition

to Withdraw. The PCRA court issued a Pa.R.Crim.P. 907 Notice of intent to

dismiss the Petition, and Ruiz-Mayo did not file a response. Thereafter, the

PCRA court granted Attorney Quinn’s Petition to Withdraw and dismissed the

PCRA Petition. Ruiz-Mayo filed a timely Notice of Appeal.

      On appeal, Ruiz-Mayo raises the following questions for our review:

      1. Whether [Attorney] Churchville[] provided ineffective
      assistance of counsel during the guilty plea and sentencing
      phase, where [he] failed to file any post-sentencing motions on
      behalf of [Ruiz-Mayo,] [c]hallenging that [Ruiz-Mayo] was
      improperly sentenced to multiple inchoate crimes, and [that] the
      [trial] court [erred in] allowing the charge of attempted homicide
      to be amended to the original Information[?]

2
 Commonwealth v Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 230 (Pa. Super. 1988) (en banc).


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     2. Whether [Attorney] Lyden[] provided ineffective assistance of
     counsel to [Ruiz-Mayo], when [Attorney] Lyden was assigned to
     [Ruiz-Mayo’s] timely filed[] [first PCRA Petition], which was
     docketed in the Clerk of Court’s Office for Lancaster County[] on
     June 25, 2012[?]

     3. Whether [Attorney] Quinn[] provided ineffective assistance of
     counsel, where [Attorney] Quinn[] was appointed to represent
     [Ruiz-Mayo for his second PCRA Petition] Motion for Post-
     Conviction Relief, and sought to withdraw from the case without
     perfecting [Ruiz-Mayo’s] claims on the [second PCRA Petition?]

     4. Whether all appointed counsels[’] ineffective representation of
     [Ruiz-Mayo] denied [Ruiz-Mayo] the opportunity to fairly present
     the claims[,] which were ripe for appellate review[,] to the [trial]
     court on a Post-Conviction Motion/Petition[?]

     5. Whether the compiled acts of all assigned counsel[]
     constitute[] an exception to § 9545(b)(1)[] “Time For Filing
     Petition[,]” [as the] acts of all assigned and appointed counsel
     resulted in a substantial waiver and denial of [Ruiz-Mayo’s]
     constitutional rights[?]

Brief for Appellant at 3-4 (unnumbered) (capitalization and emphasis

omitted).

           We review an order dismissing a petition under the PCRA
     in the light most favorable to the prevailing party at the PCRA
     level. This review is limited to the findings of the PCRA court
     and the evidence of the record. We will not disturb a PCRA
     court’s ruling if it is supported by evidence of record and is free
     of legal error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

     Under the PCRA, any PCRA petition, “including a second or subsequent

petition, shall be filed within one year of the date that the judgment

becomes final[.]”   42 Pa.C.S.A. § 9545(b)(1).      A judgment of sentence


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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   the   expiration   of   time   for   seeking   review.”   Id.

§ 9545(b)(3).    The PCRA’s timeliness requirements are jurisdictional in

nature and a court may not address the merits of the issues raised if the

PCRA petition was not timely filed. Commonwealth v. Albrecht, 994 A.2d

1091, 1093 (Pa. 2010).

      Here, Ruiz-Mayo’s judgement of sentence became final on May 3,

2012, upon the expiration of the thirty-day period for filing a direct appeal of

his conviction. See 42 Pa.C.S.A. § 9545(b)(3). Ruiz-Mayo had until May 3,

2013, to file a timely PCRA petition.        However, Ruiz-May did not file the

instant Petition until July 10, 2014, which is beyond the one-year timeliness

requirement for filing a PCRA petition.

      However, we may address an untimely PCRA petition where the

appellant pleads and proves one of three statutory exceptions: (i) the failure

to raise the claim was the result of government interference; (ii) the facts of

the new claim were unknown to the petitioner and could not have been

discovered with due diligence; or (iii) the right asserted is a constitutional

right recognized by the United States Supreme Court or the Pennsylvania

Supreme Court after the time period provided in the section and has been

held to apply retroactively.    42 Pa.C.S.A. § 9545(b)(1)(i-iii).        Any PCRA

petition invoking one of these exceptions must be filed within sixty days of



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the date the claim could have been presented. Id. § 9545(b)(2); Albercht,

994 A.2d at 1094.

        Here, Ruiz-Mayo invokes the newly-discovered facts exception at 42

Pa.C.S.A. § 9545(b)(1)(ii), by claiming his counsel abandoned him. Brief for

Appellant at 26 (unnumbered). Ruiz-Mayo does not fulfill the requirements

of section 9545(b)(1)(ii) because he knew his counsel could withdraw at any

time.     Further, Ruiz-Mayo does not demonstrate that he filed the instant

Petition within 60 days of the discovery of an unknown fact.     Accordingly,

Ruiz-Mayo failed to meet the requirements of the second timeliness

exception, and we cannot address his claims.

        Moreover, Ruiz-Mayo raises various ineffective assistance of counsel

claims.    Brief for Appellant at 9-31 (unnumbered).    However, ineffective

assistance claims do not implicate an exception under section 9545(b)(1).

See Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005)

(stating that “allegations of ineffective assistance of counsel will not

overcome the jurisdictional timeliness requirements of the PCRA.”).3 Thus,

the PCRA court properly dismissed Ruiz-Mayo’s PCRA Petition.4


3
  Ruiz-Mayo raises various claims regarding Attorney Lyden’s Turner/Finley
no-merit letter. However, upon our review, Attorney Lyden fulfilled all of the
requirements of Turner/Finley. See PCRA Court Opinion, 5/1/15, at 2-3.
Moreover, Ruiz-Mayo did not raise his ineffective assistance claims regarding
Attorney Lyden in a response to the PCRA court’s Pa.R.Crim.P. 907 Notice of
intent to dismiss the first Petition. See Ford, 44 A.3d at 1198. Similarly,
Ruiz-Mayo did not raise his ineffective assistance claims regarding Attorney
Quinn in a response to the PCRA court’s Pa.Crim.P. 907 Notice of intent to
dismiss the instant Petition. See id.


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J-S53032-15


     Order affirmed.

       Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/24/2015




4
   Ruiz-Mayo’s claim that the PCRA court erred in dismissing his PCRA
Petition, without first holding an evidentiary hearing, is without merit.
“[T]he right to an evidentiary hearing on a PCRA petition is not absolute, and
the PCRA court may decline to hold a hearing if the petitioner’s claims are
patently frivolous with no support in either the record or other evidence.”
Commonwealth v. Garcia, 23 A.3d 1059, 1066 n.9 (Pa. Super. 2011). In
this case, where Ruiz-Mayo filed an untimely PCRA Petition and did not plead
and prove an exception to the timeliness requirement, we conclude that the
PCRA court did not abuse its discretion in declining to hold an evidentiary
hearing. See id.


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