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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                          :
ISMAEL ACEVEDO ORTIZ,                     :         No. 3397 EDA 2016
                                          :
                         Appellant        :


               Appeal from the PCRA Order, September 23, 2016,
                 in the Court of Common Pleas of Lehigh County
                Criminal Division at No. CP-39-CR-0003253-2003


BEFORE: LAZARUS, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED AUGUST 18, 2017

        Ismael Acevedo Ortiz appeals pro se the order of September 23, 2016

by the Court of Common Pleas of Lehigh County that dismissed his petition

for a writ of habeas corpus as an untimely PCRA1 petition without a

hearing. After careful review, we affirm.

        The factual history of this matter as recounted by the PCRA court is as

follows:

                     On July 7, 2004, a jury found the appellant
              guilty of Murder of the Second Degree, Robbery and
              Criminal Conspiracy.[Footnote 1] The appellant and
              two accomplices participated in the killing of
              Jasper Watts, who was shot in the back of his head
              inside his apartment.

                   [Footnote   1]:        18    Pa.C.S.[A.]
                   §[§] 2502(b), 3701(a)(1), and 903(a).

1
    Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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                On August 19, 2004, the appellant was
          sentenced to life imprisonment for the charge of
          Murder of the Second Degree. He also received
          concurrent sentences of not less than six (6) years
          nor more than twenty (20) years for the charge of
          Robbery, and not less than five (5) years nor more
          than twenty (20) years for the charge of Conspiracy
          to Commit Robbery.

                The appellant’s judgment of sentence was
          affirmed by the Superior Court on March 6, 2006 and
          thereafter the Supreme Court denied his petition for
          allowance of appeal.[Footnote 2]. The appellant filed
          a “Petition for Post-Conviction Collateral Relief” on
          June 22, 2007. Counsel was appointed to represent
          the appellant and a hearing was held on March 17,
          2008. The PCRA petition was denied on June 30,
          2008. The Superior Court affirmed that denial on
          May 18, 2009.[Footnote 3].

               [Footnote 2]: See Commonwealth v.
               Acevedo-Ortiz,     898 A.2d   1123
               (Pa.Super.      2006)  (unpublished
               memorandum)[,] appeal denied, 903
               A.2d 1232 (Pa. 2006).

               [Footnote 3]:      Commonwealth v.
               Acevedo-Ortiz,     2273   EDA  2008
               (Pa.Super. May 18, 2009).

                 On June 21, 2016, the appellant filed
          “Petitioner’s Writ for Habeas Corpus,” which is the
          subject of this appeal, and an accompanying
          memorandum of law.          This Court treated the
          appellant’s request for habeas corpus relief as a
          request for PCRA relief.      On August 30, 2016,
          pursuant to Pa.R.Crim.P. 907(1), this Court issued a
          notice of our intention to dismiss without a hearing,
          and permitted the appellant twenty (20) days to
          respond. The appellant failed to do so, and on
          September 23, 2016, the appellant’s petition was
          dismissed.




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                  On October 18, 2016, the appellant filed a
            Notice of Appeal without the required proof of
            service.    Thereafter, the required Certificate of
            Service was filed on October 31, 2016. This Court
            issued an Order pursuant to Pa.R.A.P. 1925(b) on
            November 1, 2016, and the appellant filed
            “Appellant’s Concise Statement of Matters for
            Appeal” (hereinafter Statement) on November 14,
            2016. The appellant in that Statement reiterates his
            claim that the trial court “failed to issue an official,
            written,     signed     and      sealed     Sentencing
            Order.”[Footnote 4]. The appellant also takes issue
            with the conclusion that the PCRA statute subsumes
            the writ of habeas corpus.[Footnote 5].

            [Footnote 4]: Statement at p. 2.

            [Footnote 5]: See 42 Pa.C.S.[A.] § 9542.

Trial court opinion, 12/12/16 at 2-3.

      Before this court, appellant raises the following issues for this court’s

review:

            1.    Has the Commonwealth of Pennsylvania
                  established 191-years of staire [sic] decisis,
                  whereby, concluding that a guilty plea, juries
                  [sic] verdict of guilt, or, any pronouncements
                  of the Court, “absent” an official, signed and
                  sealed Order,” fails to meet the requisite
                  criteria of a lawful conviction?

            2.    In the “absence” of a lawful conviction, via
                  Official Sentencing-Order, has judgment of
                  sentence been “finalized”?

            3.    According to Jurisdictional Commonwealth Law
                  in reference to Post Collateral relief, codified at
                  42 PA.     C.S.[A.]     §     9545(b)(1),        is
                  “Final Judgment” of sentence a non-waivable
                  prerequisite which makes PCRA available as an
                  avenue of judicial review and remedy?



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            4.    If PCRA is jurisdictionally unavailable for
                  judicial review of lawful imprisonment, does
                  Habeas Corpus statue [sic] 42 PA.C.S.[A.]
                  § 6503(a)(b), provide a viable alternative for
                  remedy?

            5.    Based upon the afore-cited legal predicates,
                  did the lower court commit reversible error,
                  whereby “mischaracterizing” appellants [sic]
                  Writ for habeas Corpus [sic] as a PCRA
                  Petition?

Appellant’s brief at iv (emphasis in original; citations omitted).

      “When reviewing the grant or denial of post-conviction relief, the

appellate court is limited to determining whether the lower court’s findings

are supported by the record and its order is otherwise free of legal error.

We grant great deference to findings of the PCRA court.” Commonwealth

v. Stark, 658 A.2d 816, 818 (Pa.Super. 1995) (citations omitted).

            Pennsylvania law makes clear no court has
            jurisdiction to hear an untimely PCRA petition.
            Commonwealth v. Robinson, 575 Pa. 500, 508,
            837 A.2d 1157, 1161 (2003). The most recent
            amendments to the PCRA, effective January 16,
            1996, provide a PCRA petition, including a second or
            subsequent petition, shall be filed within one year of
            the date the underlying judgment becomes final.
            42 Pa.C.S.A. § 9545(b)(1); Commonwealth v.
            Bretz, 830 A.2d 1273, 1275 (Pa.Super. 2003);
            Commonwealth v. Vega, 754 A.2d 714, 717
            (Pa.Super. 2000). A judgment is deemed 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 at the expiration of time for seeking
            the review.” 42 Pa.C.S.A. § 9545(b)(3).

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super. 2010).



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      Subsequent PCRA petitions beyond a petitioner’s first petition are

subject to the following standard:

            A second or subsequent petition for post-conviction
            relief will not be entertained unless a strong
            prima facie showing is offered to demonstrate that
            a miscarriage of justice may have occurred.
            Commonwealth v. Allen, 557 Pa. 135, 141, 732
            A.2d 582, 586 (1999). A prima facie showing of
            entitlement to relief is made only by demonstrating
            either that the proceedings which resulted in
            conviction were so unfair that a miscarriage of
            justice occurred which no civilized society could
            tolerate, or the defendant’s innocence of the crimes
            for which he was charged. Allen, at 142, 732 A.2d
            at 586. Our standard of review for an order denying
            post-conviction relief is limited to whether the trial
            court’s determination is supported by evidence of
            record and whether it is free of legal error.
            Commonwealth v. Jermyn, 551 Pa. 96, 709 A.2d
            849, 856 (1998).

            A PCRA petition, including a second or subsequent
            petition, must be filed within one year of the date
            that judgment of sentence becomes final. 42 Pa.C.S.
            § 9545(b)(1).        A judgment becomes final for
            purposes of the PCRA “at the conclusion of direct
            review, including discretionary review in the
            Supreme Court of the United States and the
            Supreme Court of Pennsylvania, or at the expiration
            of time for seeking the review.”            42 Pa.C.S.
            § 9545(b)(3). PCRA time limits are jurisdictional in
            nature, implicating a court’s very power to
            adjudicate a controversy. Commonwealth v. Fahy,
            558 Pa. 313, 737 A.2d 214 (1999). Accordingly, the
            “period for filing a PCRA petition is not subject to the
            doctrine of equitable tolling,” instead, the time for
            filing a PCRA petition can be extended only if the
            PCRA permits it to be extended, i.e., by operation of
            one of the statutorily enumerated exceptions to the
            PCRA time-bar. Id. at 329, 737 A.2d at 222.




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Commonwealth v. Ali, 86 A.3d 173, 176-177 (Pa. 2014), cert. denied,

135 S.Ct. 707 (2014).

           The three statutory exceptions to the timeliness
           provisions in the PCRA allow for very limited
           circumstances under which the late filing of a
           petition will be excused. 42 Pa.C.S.A. § 9545(b)(1).
           To invoke an exception, a petition must allege and
           prove:

           (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.A. § 9545(b)(1)(i)-(iii). “As such, when a
           PCRA petition is not filed within one year of the
           expiration of direct review, or not eligible for one of
           the three limited exceptions, or entitled to one of the
           exceptions, but not filed within 60 days of the date
           that the claim could have been first brought, the trial
           court has no power to address the substantive merits
           of a petitioner’s PCRA claims.” Commonwealth v.
           Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783
           (2000); 42 Pa.C.S.A. § 9545(b)(2).



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Monaco, 996 A.2d at 1079-1080.

      Here, the Pennsylvania Supreme Court denied appellant’s petition for

allowance of appeal on July 27, 2006.       Appellant’s judgment of sentence

became final on October 26, 2006, after his opportunity to seek review with

the United States Supreme Court ended.          See U.S. Sup.Ct. Rule 13,

28 U.S.C.A. In order to timely file a PCRA petition, appellant had to file the

petition within one year of October 26, 2006. The current petition was not

filed until June 21, 2016, which was clearly untimely. In order for the PCRA

court to properly consider the current petition, appellant must establish that

the petition meets one of the three exceptions to the one-year timeliness

requirement.

      Appellant does not argue that he meets one of the exceptions. Even

legality of sentencing claims are subject to the PCRA’s time of filing

restrictions.   See Commonwealth v. Fahy, 959 A.2d 312 (Pa. 2008).

Instead, appellant argues that because the sentencing court failed to issue

an official sentencing order and instead issued a “sentencing sheet” that

there was no final judgment so that the time constraints of the PCRA do not

apply. However, this court has reviewed the “sentencing sheet.” There are

three with one for each conviction.    The sentencing judge signed all three

and indicated the length of the sentence and whether a sentence was

concurrent to another.   It appears that these sheets constitute sentencing

orders. Even if they do not, this court has held that the criminal docket and



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the transcript of the sentencing hearing are sufficient to confirm the

imposition of a prisoner’s sentence even if no sentencing order was

produced. See Joseph v. Glunt, 96 A.3d 365 (Pa.Super. 2014). Appellant

does not assert that the docket entries and sentencing transcript do not

confirm his sentence.

      To the extent appellant argues that he can seek habeas corpus relief

outside the PCRA, the trial court correctly stated that proceeding under the

PCRA is the sole means of pursuing 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 and coram

nobis.” 42 Pa.C.S.A. § 9542. In Commonwealth v. Taylor, 65 A.3d 462,

465-466 (Pa.Super. 2013), this court stated that unless the PCRA fails to

provide for a potential remedy, the PCRA subsumes the writ of habeas

corpus. There is no indication here that the PCRA did not provide a remedy

for appellant’s claim.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/18/2017




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