J-S06012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JULIO ELIEZER ORTIZ

                            Appellant                  No. 1801 EDA 2016


                    Appeal from the PCRA Order May 11, 2016
                 In the Court of Common Pleas of Lehigh County
               Criminal Division at No(s): CP-39-CR-0000102-2002
                                           CP-39-CR-0000634-2002
                                           CP-39-CR-0001217-2002


BEFORE: MOULTON, J., RANSOM, J., and FITZGERALD, J.*

MEMORANDUM BY MOULTON, J.:                               FILED JUNE 19, 2017

       Julio Eliezer Ortiz appeals, pro se, from the May 11, 2016 order

entered in the Lehigh County Court of Common Pleas dismissing his petition

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

9541-9546. We affirm.

       On August 5, 2002, a jury convicted Ortiz of first-degree murder,

robbery, and criminal conspiracy.1 On September 6, 2002, the trial court



____________________________________________


       *
           Former Justice specially assigned to the Superior Court.
       1
        18 Pa.C.S. §§ 2502(a), 3701(a)(1)(i), 903(a)(2), respectively. The
murder and robbery charges were at docket no. CP-39-CR-102-2002 and the
conspiracy charge was at docket no. CP-39-CR-634-2002.
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sentenced Ortiz to an aggregate term of life in prison plus 27 to 60 years’

incarceration. On August 20, 2003, this Court affirmed.

       On June 15, 2004, Ortiz pled nolo contendere to another charge of

criminal conspiracy2 at docket no. CP-39-CR-0001217-2002. The same day,

the trial court sentenced Ortiz to 120 to 240 months’ incarceration, to run

concurrently with his previous sentence.

       On June 29, 2004, Ortiz filed his first PCRA petition, which the PCRA

court denied. On August 15, 2007, this Court remanded to the trial court for

appointment of new counsel. On January 7, 2008, this Court affirmed and

granted counsel’s motion to withdraw.

       The current PCRA court described the subsequent history as follows:

               On November 27, 2012, [Ortiz] filed a second pro se
            PCRA petition. On January 11, 2013, an order was entered
            placing [Ortiz] on notice of the court’s intent to dismiss his
            PCRA petition without a hearing due to his failure to
            comply with the timeliness requirements of the PCRA. See
            Pa.R.Crim.P. 907. [Ortiz] was given twenty days to
            respond. A Motion for Extension of Time to File an Answer
            to the Court’s Intention to Dismiss Without a Hearing was
            granted and [Ortiz] was afforded forty-five additional days
            to respond. On March 26, 2013, [Ortiz] filed a response
            which failed to meet an exception to the timeliness
            requirements of the PCRA. Accordingly, his petition was
            dismissed on March 27, 2013.

               On April 26, 2013, [Ortiz] filed a Notice of Appeal from
            the dismissal of his second PCRA petition. The Superior
            Court affirmed the Court’s dismissal of the PCRA petition
            on December 24, 2013.
____________________________________________


       2
           18 Pa.C.S. § 903(a)(2).



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            The instant matter was initiated by [Ortiz] submitting a
         pro se motion entitled “State Writ of Habeas Corpus Also
         Cognizable Under a State Post Conviction Relief Act,” filed
         on March 11, 2016. Upon review, the Court observed that
         this was a subsequent PCRA petition for Case Numbers CP-
         39-CR-102-2002 and CP-39-CR-634-2002. However, in
         Case Number CP-39-CR-1217-2002, [Ortiz] had not
         previously filed a PCRA petition. This rendered the instant
         petition his first PCRA. As an exercise of caution, the
         Court appointed the Lehigh County Public Defender to
         represent [Ortiz] in his PCRA petition.1
               1
                 See Pa.R.Crim.P. 904 (court must appoint
               counsel for first PCRA regardless of underlying
               merit).

            On April 14, 2016, Carol A. Marciano, Esq. of the Lehigh
         County Public Defender’s Office filed a Motion to Withdraw
         as Counsel, which the Court granted on April 22, 2016.
         Also on April 22, 2016, the Court placed [Ortiz] on notice
         of the Court’s intent to dismiss his PCRA petition without a
         hearing pursuant to Pa.R.Crim.P. 907. [Ortiz] filed a pro se
         response to the Court’s notice on May 6, 2016.

            On May 11, 2016, the Court           entered   an    order
         dismissing the PCRA as untimely.

           [Ortiz] filed a Notice of Appeal on June 10, 2016. The
         Court directed that he produce a Concise Statement of
         Matters Complained of on Appeal, which he filed on July 7,
         2016.

1925(a) Opinion, 7/14/16, at 1-3 (some alterations in original).

      Our review of an order denying PCRA relief is limited to determining

“whether the decision of the PCRA court is supported by the evidence of

record and is free of legal error.” Commonwealth v. Melendez-Negron,

123 A.3d 1087, 1090 (Pa.Super. 2015). We will not disturb the PCRA court’s

factual findings “unless there is no support for [those] findings in the

certified record.” Id.


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       Before we reach the merits of Ortiz’s petition, we must determine

whether it was timely filed. It is well settled that “the timeliness of a PCRA

petition is a jurisdictional requisite.” Commonwealth v. Brown, 111 A.3d

171, 175 (Pa.Super.), app. denied, 125 A.3d 1197 (Pa. 2015).          A PCRA

petition “including a second or subsequent petition, shall be filed within one

year of the date the judgment becomes final.” 42 Pa.C.S. § 9545(b)(1). A

judgment is 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. § 9545(b)(3).

       Ortiz’s judgment of sentence became final on September 19, 2003,

when the time to petition for allowance of appeal with our Supreme Court

expired. See Pa.R.A.P. 1113(a). He had one year from that date, or until

September 20, 2004,3 to file a timely PCRA petition. Therefore, his current

petition, filed on March 11, 2016, is facially untimely.


____________________________________________


       3
        Because September 19, 2004 was a Sunday, Ortiz had until Monday,
September 20, 2004 to file a timely PCRA petition. 1 Pa.C.S. § 1908 (When
last day of time period “fall[s] on Saturday or Sunday, . . . such day shall be
omitted from the computation”); Pa.R.A.P. 107 (“Chapter 19 of Title 1 of the
Pennsylvania Consolidated Statutes (rules of construction) so far as not
inconsistent with any express provision of these rules, shall be applicable to
the interpretation of these rules . . . .”).




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       Ortiz’s petition remains untimely unless it alleges and proves one of

the following time-bar exceptions:

           (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); see Brown, 111 A.3d at 175. In addition,

when invoking an exception to the PCRA time bar, the petition must “be filed

within 60 days of the date the claim could have been presented.” 42 Pa.C.S.

§ 9545(b)(2).

       On appeal, Ortiz contends4 that the PCRA court erred in dismissing his

PCRA petition as untimely because he alleged and proved the new

constitutional right exception to the PCRA time bar.         See 42 Pa.C.S. §

____________________________________________


       4
        Ortiz’s brief does not contain a statement of questions involved as
required by Pennsylvania Rule of Appellate Procedure 2116(a). However,
because we are able to discern the issue that Ortiz wishes to raise and
engage in meaningful appellate review, we will not find this issue waived.
Cf. Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa.Super. 2007)
(“[W]hen defects in a brief impede our ability to conduct meaningful
appellate review, we may dismiss the appeal entirely or find certain issues to
be waived.”)



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9545(b)(1)(iii).    Ortiz relies on Miller v. Alabama, 132 S.Ct. 2455, 2460

(2012), in which the United States Supreme Court held that a sentence of

life imprisonment without the possibility of parole was unconstitutional when

imposed on defendants who were “under the age of 18 at the time of their

crimes.” He also relies on Montgomery v. Louisiana, 136 S.Ct. 718, 736

(2016),5 in which the Supreme Court held that Miller applied retroactively to

cases on state collateral review.

       Ortiz was 24 years old at the time he committed the murder. 6      We

have held that Miller’s prohibition of mandatory life without parole

sentences does not apply to those who were 18 or older at the time of the

offense.    See Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa.Super.

2013) (concluding that, for appellants, who were 19 and 21 at time of

offense, “the holding in Miller does not create a newly-recognized

constitutional right that can serve as the basis for relief”); 7 see also

____________________________________________


       5
        Ortiz filed the instant PCRA petition within 60 days of the
Montgomery decision, thereby satisfying the requirement of section
9545(b)(2).
       6
      Ortiz was born on July 4, 1977 and committed the murder on
December 2, 2001.
       7
        In Cintora, this Court rejected the appellants’ argument that it
would violate the equal protection clause to not grant them relief pursuant to
Miller. The appellants argued that Miller should apply to those under the
age of 25 “because Miller created a new Eighth Amendment right, that
those whose brains were not fully developed at the time of their crimes are
free from mandatory life without parole sentences, and because research
(Footnote Continued Next Page)


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Commonwealth            v.   Furgess,      149    A.3d   90,   94   (Pa.Super.   2016)

(reaffirming Cintora’s holding that petitioners who were 18 or older “at the

time they committed murder are not within the ambit of the Miller decision

and therefore may not rely on that decision to bring themselves within the

time-bar exception”).

      Because Ortiz was 24 years old at the time of the offenses, Miller

does not apply, and Ortiz has failed to satisfy the new constitutional right

exception to the PCRA time bar. Therefore, we conclude the PCRA court did

not err in dismissing the petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/19/2017




                       _______________________
(Footnote Continued)

indicates that the human mind does not fully develop or mature until the age
of 25.” Cintora, 69 A.3d at 764. The Court noted that the appellants’
“contention that a newly-recognized constitutional right should be extended
to others does not render their petition timely pursuant to section
9545(b)(1)(iii).” Id. (emphasis in original).



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