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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    v.                   :
                                         :
JULIO ORTIZ, Jr.,                        :         No. 738 MDA 2015
                                         :
                         Appellant       :


                  Appeal from the PCRA Order, April 6, 2015,
                in the Court of Common Pleas of Berks County
               Criminal Division at No. CP-06-CR-0004586-2012


BEFORE: FORD ELLIOTT, P.J.E., WECHT AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED DECEMBER 04, 2015

        Julio Ortiz appeals pro se from the order filed in the Court of Common

Pleas of Berks County which dismissed, without a hearing, his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546.

        On November 26, 2011, during an altercation, appellant shot

Adabell Marte-Ortiz three times in the legs.     Appellant was arrested and

charged with criminal attempt -- criminal homicide; aggravated assault;

firearms not to be carried without a license; recklessly endangering another

person; and simple assault.1



* Former Justice specially assigned to the Superior Court.
1
  18 Pa.C.S.A. §§ 901(a), 2702(a)(1) and (4), 2705, 2701(a)(1), and
2701(a)(3), respectively.
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      On April 9, 2013, appellant entered a guilty plea to one count of

aggravated assault, a second degree felony, 18 Pa.C.S.A. § 2702(a)(4). In

entering this plea, the Commonwealth withdrew the other charges including

attempted homicide.     Appellant indicated that he understood that the

maximum permissible sentence for the aggravated assault charge was

ten years in jail, plus a $25,000 fine.       (Docket #10.)   Appellant was

sentenced on April 9, 2013, and received a sentence of five to ten years of

incarceration.   No post-sentence motions were filed within ten days of

sentencing, and no direct appeal was filed.

      On December 16, 2014, appellant filed a PCRA petition.      Appellant

argued that his sentence was illegal under Alleyne v. United States, 133

S.Ct. 2151 (2013). Osmer Deming, Esq., was appointed as PCRA counsel.

The PCRA court ordered Attorney Deming to file an amended PCRA petition.

On February 26, 2015, Attorney Deming filed a Turner/Finley2 “No Merit”

letter and a petition to withdraw. (Docket #22.) On March 11, 2015, the

PCRA court issued its Pa.R.Crim.P. 907(1) notice of intent to dismiss the

petition without a hearing and granted the petition to withdraw. The PCRA

court determined that it lacked jurisdiction and dismissed the petition on

April 7, 2015.

      On appeal, appellant raises one issue for our review:



2
 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Pennsylvania
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).


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              IS THE APPELLANT’S SENTENCE A NULLITY IN LIGHT
              OF THIS COURTS [sic] RULING IN COMMONWEALTH
              V.   NEWMAN    IN   WHICH    THE   MANDATORY
              SENTENCING STATUTES HAVE BEEN FOUND TO BE
              FACIALLY UNCONSTITUTIONAL?

Appellant’s brief at 7.3

        All PCRA petitions, including second and subsequent petitions, must be

filed within one year of when a defendant’s judgment of sentence becomes

final. 42 Pa.C.S.A. § 9545(b)(1). The Pennsylvania Supreme Court has held

that the PCRA’s time restriction is constitutionally sound. Commonwealth

v. Cruz, 852 A.2d 287 (Pa. 2004).           In addition, our supreme court has


3
    Curiously, appellant asserts that he:

              was sentenced to the mandatory statutes proscribed
              [sic] in 42 Pa.C.S.A. 7508, as he was charged with
              committing a narcotics offense.            Prior to
              sentencing, the Commonwealth sought, and
              received, the imposition of a mandatory
              sentence pursuant to statute. The Petitioner
              [appellant] avers that this enhancement resulted in
              an illegal mandatory minimum sentence under the
              decisions rendered in Alleyne, Newman and Munday.
              As a result of this illegal sentence, the Petitioner
              [appellant] avers that his case must be remanded for
              resentencing.

Appellant’s brief at 10 (emphasis added).

      Appellant was not charged with committing a “narcotics offense” under
42 Pa.C.S.A. § 7508. Nevertheless, this court believes that this was a
mistake on appellant’s part. We have reviewed the record and located a
Memorandum of Law in support of appellant’s PCRA petition which correctly
couches the issue in terms of the crimes with which he was actually charged.
We will address this appeal as though the issue was accurately stated by
appellant in his pro se brief rather than dismiss the appeal summarily based
on what was obviously an inadvertent error.


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instructed that the timeliness of a PCRA petition is jurisdictional. If a PCRA

petition   is    untimely,       a    court   lacks   jurisdiction     over   the    petition.

Commonwealth v. Callahan, 101 A.3d 118 (Pa.Super. 2014) (courts do

not   have      jurisdiction    over     an   untimely     PCRA);    Commonwealth           v.

Wharton, 886 A.2d 1120 (Pa. 2005).

      In this case, appellant’s PCRA petition is facially untimely. Appellant

entered his guilty plea and was sentenced on April 9, 2013. Since no appeal

was filed, appellant’s sentence became final on May 9, 2013, which was

30 days from the judgment of sentence. Appellant had one year from this

date, or until May 9, 2014, to file a PCRA petition. Appellant filed his PCRA

petition on December 16, 2014, which is more than seven months after the

deadline imposed by the PCRA.

      There      are    three        narrow   exceptions    to   the    PCRA’s      timeliness

requirements which are set forth in 42 Pa.C.S.A. § 9545:

                (b)    Time for filing petition--

                       (1)     Any petition under this subchapter,
                               including a second or subsequent
                               petition, shall be filed within one year of
                               the date the judgment becomes final,
                               unless the petition alleges and the
                               petitioner proves that:

                               (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


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                                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.

                 (2)   Any petition invoking an exception
                       provided in paragraph (1) shall be filed
                       within 60 days of the date the claim
                       could have been presented.

42 Pa.C.S.A. § 9545(b)(1) and (2).

     The defendant has the burden of pleading and proving the applicability

of any exception. 42 Pa.C.S.A. § 9545(b)(1). “If the petition is determined

to be untimely, and no exception has been pled and proven, the petition

must be dismissed without a hearing because Pennsylvania courts are

without jurisdiction to consider the merits of the petition.” Commonwealth

v. Perrin, 947 A.2d 1284, 1285 (Pa.Super. 2008).

     Appellant   asserts      that   the   exception   found   in   42   Pa.C.S.A.

§ 9545(b)(1)(iii) applies.      He argues that “prior to sentencing, the



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Commonwealth sought a sentencing enhancement for the use/display of a

deadly weapon during the commission of the offense” and that “[p]ursuant

to that request, the [sentencing] [c]ourt imposed a statutory maximum term

of 5 to 10 years, with a [42 Pa.C.S.A. § 9712] enhancement.” (Appellant’s

brief at 8.)   Appellant avers that this resulted in an illegal mandatory

minimum sentence under Alleyne.

     Even apart from whether appellant can raise an illegality of the

sentence issue in an untimely PCRA petition, we do not agree that appellant

was sentenced under the mandatory minimum statute at 42 Pa.C.S.A.

§ 9712. Contrary to appellant’s assertion, the Commonwealth did not file a

notice of intention to seek a mandatory minimum sentence.        Appellant’s

written paperwork makes no reference to a mandatory minimum sentence.

A mandatory minimum sentence was not discussed or mentioned during

appellant’s guilty plea colloquy.   Moreover, reviewing the guilty plea and

sentencing transcript, there is no indication that the trial court took the

statutory mandatory minimum sentencing term into account as a factor in

sentencing appellant. Rather, the trial court noted that appellant entered a

guilty plea to aggravated assault, a second degree felony, 18 Pa.C.S.A.

§ 2702(a)(4).4 (Guilty plea and sentencing notes of testimony, 4/9/13 at 9.)

The trial court indicated that the sentence was “based upon the plea



4
 The maximum sentence for conviction of this offense is ten years, plus a
$25,000 fine. 18 Pa.C.S.A. § 1103(2).


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agreement” and stated: “[t]o the degree that it’s above the guidelines, that

is the reason for that.” (Id.)

      The sentence was the product of a negotiated plea agreement which

included a specific minimum sentence.       The trial court accepted the plea

agreement and imposed a sentence consistent with the agreement’s terms.

Further, the five to ten-year sentence was within the statutory limits for a

second-degree felony crime.        Because the trial court did not impose a

mandatory minimum sentence in this case, appellant’s claim that his

sentence is illegal is baseless.

      As appellant’s PCRA petition is clearly untimely and appellant has

failed to plead and prove the applicability of any exception to the PCRA’s

time-of-filing requirements, the PCRA court lacked jurisdiction to consider

the merits of appellant’s issues and did not err in dismissing appellant’s

petition without an evidentiary hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/4/2015




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