J-S65038-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    RENE RUIZ-MAYO                             :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                 v.                            :
                                               :
                                               :
    MARK GARMAN                                :   No. 600 MDA 2019

                Appeal from the Order Entered March 20, 2019
       In the Court of Common Pleas of Lancaster County Civil Division at
                             No(s): CI-18-10615


BEFORE:        PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                             FILED JANUARY 06, 2020

        Appellant, Rene Ruiz-Mayo (“Appellant” or “Ruiz-Mayo”), pro se, appeals

from the order entered March 20, 2019, that dismissed, without a hearing,

the petition that he styled as a “Petition for Writ of Habeas Corpus ad

Subjiciendum” but that the Court of Common Pleas deemed a third petition

filed under the Post Conviction Relief Act (“PCRA”).1 We affirm.

        On April 3, 2012, Ruiz-Mayo, represented by John E. Churchville,
        Esquire . . . , entered a negotiated guilty plea to a variety of
        crimes.1 The trial court accepted the negotiated plea and, on the
        same date, imposed an aggregate prison sentence of twenty-five
        to fifty years. Ruiz-Mayo did not file a direct appeal.
           1 Ruiz-Mayo pled guilty to three separate docket numbers.
           At docket number [CP-36-CR-0005694-2011], Ruiz-Mayo
           pled guilty to one count of criminal attempt (homicide), four
           counts each of first-degree aggravated assault and second
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*   Retired Senior Judge assigned to the Superior Court.
1   42 Pa.C.S. §§ 9541–9546.
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        degree aggravated assault, one count of firearms without
        license, and two counts of recklessly endangering another
        person.    At docket number [CP-36-CR-0005678-2011],
        Ruiz-Mayo pled guilty to one count each of firearms without
        license and receiving stolen property. At docket number
        [CP-36-CR-0000024-2012], Ruiz-Mayo pled guilty to one
        count each of delivery of cocaine and criminal use of a
        communication facility.

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

     Ruiz-Mayo filed [his second] 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.

Commonwealth       v.   Ruiz-Mayo,    No.   435    MDA    2015,   unpublished

memorandum at 1-2 (Pa. Super. filed September 24, 2015).            This Court

affirmed the order dismissing Appellant’s second PCRA petition. Id. at 1, 5.

     On December 10, 2018, Appellant pro se filed a “Petition for Writ of

Habeas Corpus ad Subjiciendum”, which the lower court deemed a third PCRA




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petition and dismissed without a hearing on March 20, 2019.2 On April 15,

2019, Appellant filed this timely appeal.3

       Appellant presents the following issues for our review:

       1.   Whether there is statutory authorization for the imposed
       sentence(s)?




____________________________________________


2 A review of the record reveals that the lower court failed to issue notice of
its intent to deny the petition after deeming it a PCRA petition, as is required
by Pa.R.Crim.P. 907.

       Although the notice requirement set forth in Rule 907 has been
       held to be mandatory, see Commonwealth v. Feighery, 443
       Pa.Super. 327, 661 A.2d 437 (1995) (Feighery discussed
       Pa.R.Crim.P. 1507, which was renumbered as Rule 907 as of
       April 1, 2001), Appellant has not objected to its omission and
       thereby has waived the issue. See Commonwealth v. Williams,
       909 A.2d 383 (Pa.Super.2006); see also Commonwealth v.
       Guthrie, 749 A.2d 502 (Pa.Super.2000). Moreover, the Supreme
       Court has indicated, on at least one occasion, that when a PCRA
       petition is untimely filed, the failure to provide such notice is not
       reversible error. Commonwealth v. Pursell, 561 Pa. 214, 749
       A.2d 911 (2000); see also Commonwealth v. Davis, 916 A.2d
       1206 (Pa.Super.2007).

Commonwealth v. Boyd, 923 A.2d 513, 514 n.1 (Pa. Super. 2007).
Analogously, Appellant in the current appeal has not objected to the omission
of a Rule 907 notice and, accordingly, has waived the issue. Id. Additionally,
as discussed below, Appellant’s petition was properly deemed an untimely
PCRA petition by the lower court, and the court’s failure to provide a Rule 907
Notice consequently is not reversible error. Id.
3The lower court did not order and Appellant did not file a statement of errors
complained of on appeal. The court had filed an opinion with its order
dismissing Appellant’s petition. On May 10, 2019, the court entered an
“Opinion Sur Appeal” stating that the opinion accompanying its order dated
March 20, 2019, would serve as its opinion pursuant to Pa.R.A.P. 1925(a).


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      2.     Whether Purdon's Pennsylvania Consolidated Statutes
      Annotated contain the mandatory enacting clause from the
      legislature?

      3.    Whether the 1968 Pennsylvania Constitution contain[s] a
      general saving[] clause and/or saving[] schedule applicable to
      criminal prosecution?

      4.    Whether the trial court have subject matter jurisdiction with
      the lack of enacting clause for Purdon’s Pennsylvania Consolidated
      Statutes Annotated?

      5.    Whether the trial court have subject matter jurisdiction with
      the lack of a general saving clause and/or saving[] schedule
      applicable to criminal prosecutions for the 1968 Pennsylvania
      Constitution?

      6.   Whether the Relator/Peti[ti]oner/Appellant indicted by a
      grand jury?

      7.    Whether the Relator/Petitioner/Appellant waived his Fifth
      Amendment right to have a bill of indictment submitted to a grand
      jury?

Appellant’s Brief at 4 (lower court’s answers and unnecessary capitalization

omitted).

      Preliminarily, we note that habeas corpus petitions have been subsumed

into the PCRA. 42 Pa.C.S. § 9542 (“The action established in this subchapter

[-- i.e., the PCRA --] shall be the sole means of obtaining collateral relief and

encompasses all other common law and statutory remedies for the same

purpose that exist when this subchapter takes effect, including habeas

corpus”); see also Commonwealth v. Emma Turner, 80 A.3d 754, 770

(Pa. 2013) (PCRA “subsumes the remedies of habeas corpus”).            Ergo, the

lower court was correct that Appellant’s petition would properly be considered

a PCRA petition, irrespective of the name given to it by Appellant.


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       “We review the denial of PCRA relief to decide whether the PCRA court’s

factual determinations are supported by the record and are free of legal error.”

Commonwealth v. Medina, 209 A.3d 992, 996 (Pa. Super. 2019) (quoting

Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018)).

       The    timeliness     of   a   post-conviction   petition   is   jurisdictional.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

of sentence is final, unless the petition alleges and the petitioner proves one

of the three exceptions to the time limitations for filing the petition set forth

in section 9545(b) of the statute. See 42 Pa.C.S. § 9545(b)(1).4



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4   The three exceptions to the timeliness requirement are:

       (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. § 9545(b)(1)(i)-(iii).




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       Appellant’s judgment of sentence became final thirty days after his

sentencing – i.e., May 3, 2012. Pa.R.A.P. 903(a). Appellant had one year

thereafter to file a PCRA petition – i.e., until May 3, 2013.          42 Pa.C.S.

§ 9545(b)(1).     Appellant filed the current petition on December 10, 2018,

greater than five years late.         Therefore, Appellant’s petition was patently

untimely, and he has not pleaded a timeliness exception to the requirements

of the PCRA. Consequently, the PCRA court was without jurisdiction to review

the merits of majority of Appellant’s claims and properly dismissed his

petition.5

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5 We note that Appellant’s first appellate issue is a challenge to the legality of
his sentence. Appellant’s Brief at 4, 7.

       One well-established exception is that challenges to the legality of
       the sentence are never waived. This means that a court may
       entertain a challenge to the legality of the sentence so long as the
       court has jurisdiction to hear the claim. In the PCRA context,
       jurisdiction is tied to the filing of a timely PCRA petition.

Commonwealth v. Berry, 877 A.2d 479, 482 (Pa. Super. 2005) (en banc).
As Appellant’s PCRA petition is untimely, this Court does not have jurisdiction
to hear Appellant’s PCRA petition, and we thereby cannot entertain his
challenge to the legality of his sentence.

We further observe that Appellant’s fourth and fifth issues on appeal are
challenges to the trial court’s subject matter jurisdiction, Appellant’s Brief at
4, 10-11, and “subject matter jurisdiction[ is] an issue not susceptible to
waiver.” Commonwealth v. Jones, 929 A.2d 205, 208 (Pa. 2007),

Subject matter jurisdiction is purely a question of law. Id. at 211. “Our
standard of review is de novo, and our scope of review is plenary.” Id.
(citation omitted); see also Commonwealth v. McGarry, 172 A.3d 60, 65
(Pa. Super. 2017) (“[i]ssues pertaining to jurisdiction are pure questions of
law, and an appellate court’s scope of review is plenary”; “[q]uestions of law



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       For the reasons given above, we discern no error of law, and, hence, we

affirm the order below. See Medina, 209 A.3d at 996.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/06/2020




____________________________________________


are subject to a de novo standard of review” (citation omitted)), appeal
denied, 185 A.3d 966 (Pa. 2018).

       Controversies arising out of violations of the Crimes Code are
       entrusted to the original jurisdiction of the courts of common pleas
       for resolution. See 18 Pa.C.S. § 102. Every jurist within that tier
       of the unified judicial system is competent to hear and decide a
       matter arising out of the Crimes Code. Pa. Const. Art. 5, § 5
       (establishing the jurisdiction of the courts of common pleas within
       the unified judicial system).

Commonwealth v. Bethea, 828 A.2d 1066, 1074 (Pa. 2003); see also
McGarry, 172 A.3d at 66 (“All courts of common pleas have statewide subject
matter jurisdiction in cases arising under the Crimes Code pursuant to 42
Pa.C.S. § 931.” (additional citation and internal brackets omitted)). Appellant
was charged with violations of the Crimes Code, and, thus, the Court of
Common Pleas had jurisdiction to hear his case.

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