J-S22021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

LEANDRO ORTIZ-LUGO

                            Appellant                 No. 1225 MDA 2016


                   Appeal from the PCRA Order June 14, 2016
                 In the Court of Common Pleas of Adams County
               Criminal Division at No(s): CP-01-CR-0000178-2003


BEFORE: SHOGAN, J., MOULTON, J., and PLATT, J.*

MEMORANDUM BY MOULTON, J.:                       FILED SEPTEMBER 11, 2017

       Leandro Ortiz-Lugo appeals, pro se, from the June 14, 2016 order

entered in the Adams County Court of Common Pleas dismissing as untimely

his second petition filed under the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-46. We affirm.

       Ortiz-Lugo initially pled nolo contendere to first-degree murder on

August 1, 2003, and the trial court sentenced him to life imprisonment.

Following a PCRA petition alleging ineffective assistance of counsel, the trial

court vacated Ortiz-Lugo’s judgment of sentence on September 22, 2006.

On October 10, 2008, a jury convicted Ortiz-Lugo of first-degree murder and


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       *
           Retired Senior Judge assigned to the Superior Court.
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possessing instruments of crime (“PIC”).1        That same day, the trial court

sentenced Ortiz-Lugo to life imprisonment for the first-degree murder

conviction and a consecutive 60 days to 5 years’ incarceration for the PIC

conviction.     Ortiz-Lugo filed post-sentence motions, which the trial court

denied.       On October 30, 2009, this Court affirmed his judgment of

sentence.2 On July 29, 2010, Ortiz-Lugo petitioned for allowance of appeal,

which the Pennsylvania Supreme Court denied.

       On June 7, 2013, Ortiz-Lugo filed a motion seeking to withdraw

counsel.3     The trial court entered an order treating Ortiz-Lugo’s motion as

his first PCRA petition and appointing counsel. On September 24, 2013, the

trial court dismissed Ortiz-Lugo’s PCRA petition for “fail[ing] to set forth any

basis for P.C.R.A. relief or any indication that the Petition was timely filed.” 4

Order, 9/24/13.
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       1
           18 Pa.C.S. §§ 2502(a) and 907(a), respectively.
       2
       The certified record does not reflect that appellate counsel requested
either the trial or sentencing transcripts in this case. Ortiz-Lugo was
represented by the same attorney during trial and on direct appeal.
       3
         On April 29, 2013, Ortiz-Lugo filed an identical motion to withdraw
counsel in which he claimed that: he had unsuccessfully attempted to
contact his attorney, counsel was avoiding him, and counsel was not
updating Ortiz-Lugo on his case. The trial court denied the motion as moot
in light of the Supreme Court’s denial of Ortiz-Lugo’s petition for allowance
of appeal.
       4
        A review of the certified record shows that appointed counsel never
filed an amended PCRA petition or a motion to withdraw as counsel pursuant
to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
(Footnote Continued Next Page)


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      On November 4, 2015, Ortiz-Lugo requested pro se a copy of the

docket entries in his case. On November 30, 2015, he also filed a motion

with the PCRA court seeking a copy of the file in his case, including the trial

and sentencing transcripts.5         On January 5, 2016, the PCRA court denied

Ortiz-Lugo’s motion, stating that there was no litigation pending.

      On January 14, 2016, Ortiz-Lugo filed a pro se PCRA petition, his

second, alleging ineffectiveness both of direct appeal and PCRA counsel and

requesting copies of transcripts. On February 23, 2016, the PCRA court sent

Ortiz-Lugo notice of its intent to dismiss the petition, to which Ortiz-Lugo

responded.     On June 14, 2016, the PCRA court dismissed Ortiz-Lugo’s

petition as untimely without a hearing. Ortiz-Lugo timely appealed.6

      On appeal, Ortiz-Lugo raises the following issues:
                       _______________________
(Footnote Continued)

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). The
record reflects that the trial court dismissed the petition without any inquiry
into why counsel had taken no action.
      5
        On December 2, 2015, the deputy clerk of courts notified Ortiz-Lugo
that there was a $20.00 filing fee. On December 14, 2015, Ortiz-Lugo
requested waiver of the filing fee because he did not have the funds to pay
and had been granted in forma pauperis status several times over the past
12 years. On December 15, 2015, the deputy clerk of courts explained that
Ortiz-Lugo had to pay the fee because he had not been granted in forma
pauperis status since 2013. On January 7, 2016, Ortiz-Lugo filed a petition
seeking in forma pauperis status, which the trial court denied as moot on
January 21, 2016.
      6
         On September 26, 2016, after Ortiz-Lugo filed his notice of appeal,
he filed a “motion for order to direct the lower court to provide court records
and transcripts.”    On October 13, 2016, this Court entered an order
deferring disposition of Ortiz-Lugo’s application for relief to this panel.



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            I.    The PCRA Court erred when it failed to grant [Ortiz-
                  Lugo]’s request for court documents from the Clerk of
                  Courts and for failing to provide him a copy of his
                  transcripts from [Ortiz-Lugo]’s Trial and 10/10/08
                  Sentencing Proceedings.

            II.   The PCRA Court erred when it ruled on [6/14]/16 that
                  it lacks jurisdiction to entertain the PCRA Petition and
                  that the record indicates that [Ortiz-Lugo]’s petition is
                  not timely filed based on the discovery of unknown
                  facts.

Ortiz-Lugo’s Br. at 4.7

       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.

       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



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       7
           We review Ortiz-Lugo’s claims out of order for ease of disposition.



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Pennsylvania, or at the expiration of time for seeking [such] review.”         42

Pa.C.S. § 9545(b)(3).

        This Court affirmed Ortiz-Lugo’s judgment of sentence on October 30,

2009.       On July 29, 2010, the Pennsylvania Supreme Court denied Ortiz-

Lugo’s petition for allowance of appeal. Ortiz-Lugo did not file a petition for

writ of certiorari with the United States Supreme Court and, therefore, his

judgment of sentence became final on October 27, 2010.8 He had one year

from that date, or until October 27, 2011, to file a timely PCRA petition. His

current petition, filed on January 14, 2016, is therefore facially untimely.

        Courts may consider a PCRA petition filed more than one year after a

judgment of sentence became final only if the petitioner alleges and proves

one of the following three statutory 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


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        8
        Ortiz-Lugo had 90 days from the date the Pennsylvania Supreme
Court denied his petition for allowance of appeal to file a petition for writ of
certiorari with the United States Supreme Court. See U.S. S. Ct. R. 13.



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          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).

        Ortiz-Lugo attempts to raise the new-facts exception to the one-year

time bar. He claims that this Court sent him a letter on November 5, 2015,

notifying him that his direct appeal had been denied. He further claims it

was “evident that no [appeal to the PCRA petition decision] was filed.”

Ortiz-Lugo’s Br. at 19. Ortiz-Lugo argues that this constitutes abandonment

by both trial and PCRA counsel.     He contends that the November 5, 2015

letter is a new fact and that he filed his second PCRA petition within the 60

days of learning of this new fact. We disagree.

        The PCRA court addressed Ortiz-Lugo’s claims in its Pennsylvania Rule

of Appellate Procedure 1925(a) opinion and concluded he had not exercised

due diligence in discovering the alleged new fact.     The PCRA court found

that:    (1) on May 1, 2013, Ortiz-Lugo was served with an April 26, 2013

order notifying him that his direct appeal rights had been exhausted; (2) on

September 25, 2013, Ortiz-Lugo was served with the September 24, 2013

order denying his first PCRA petition, which stated “that court appointed

counsel will not act on his behalf unless requested by [him] to do so”; (3)

while Ortiz-Lugo claims he wrote to the trial court and his attorney to

ascertain the status of his appeal, he does not identify when those actions

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J-S22021-17



were taken; (4) the record reveals that Ortiz-Lugo’s due diligence attempts

did not begin until November 2015; (5) “he had knowledge of how to

ascertain the status of pending litigation as he had previously done so,” yet

chose to do nothing; (6) “he was aware that he could seek counsel’s removal

in the event counsel was inattentive and that the Court would act upon his

request as he had done so in the past”; and (7) “although claiming counsel

was inattentive he sat silently for approximately 30 months.”            Opinion

Pursuant to Pa.R.A.P. 1925(a), 9/16/16, at 8, 9 (“1925(a) Op.”). We agree.

Therefore, for the reasons set forth by the PCRA court, Ortiz-Lugo does not

meet the new-facts exception.

       Ortiz-Lugo also claims that the trial court erred in denying his motion

requesting court documents, including trial and sentencing transcripts.9 To

the extent Ortiz-Lugo claims PCRA counsel’s ineffectiveness for failing to

order the transcripts, this claim is facially untimely and, as discussed above,

Ortiz-Lugo fails to plead a viable exception to the PCRA time bar.

       To the extent Ortiz-Lugo is appealing the order denying his request for

transcripts, which was contained in his PCRA petition, the PCRA court found:

              [Ortiz-Lugo]’s claim that the Court erred in denying
           transcripts is not a basis for relief. [Ortiz-Lugo]’s first
           request for documents did not occur until well after the
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       9
        Insofar as Ortiz-Lugo argues that he did not receive docket entries in
his case, this claim is belied by the record. See Ortiz-Lugo’s Ltr., 11/4/15
(wherein Clerk of Courts notes that trial court docket sheets were sent to
Ortiz-Lugo on November 4, 2015 at approximately 1:00 p.m.).



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J-S22021-17


            jurisdictional time limits had expired. Additionally,
            pursuant to his request, [Ortiz-Lugo] was actually provided
            docket transcripts.5 The standard of review for an order
            denying a motion for production of documents is an abuse
            of discretion. See Commonwealth v. Ballem, 482 A.2d
            1322, 1324 (Pa.Super. 1984).[10] In Ballem, an inmate
            without any current pending proceedings made a
            boilerplate request for notes of testimony, docket entries,
            pre-trial motions, and other information in order to pursue
            relief under the Post Conviction Hearing Act. The Court
            held that the trial court did not abuse its discretion as the
            merits of the request were unable to be determined based
            upon the petition and absent any pending proceedings.
            [Id.] Instantly, [Ortiz-Lugo] sought “the Clerk of Courts
____________________________________________


       10
          The Ballem Court explained that a criminal defendant had a
“constitutional due process and equal protection” right “to be afforded copies
of his trial transcripts” and that this right “extended to post-conviction
proceedings as well.” 482 A.2d at 1323, 1323 n.1. In that case, we noted:

               This right was formerly embodied within the Act of May,
            1907, P.L. 135 as amended, 17 P.S. § 1802. Pursuant to
            this statute, . . . the defendant was entitled to a copy of
            the notes of testimony if the same was requested within
            90 days from the date of verdict. Commonwealth v.
            Bear, . . . 423 A.2d 1045 ([Pa.Super.] 1980). After the
            90-day period, the request was granted at the discretion of
            the court.

               This statute was repealed on April 28, 1978, P.L. 202
            effective June 27, 1980, pursuant to the Judiciary Act
            Repealer Act (JARA). Since then, no general rules have
            been prescribed to replace the repealed statute. In order
            to provide for this contingency, the legislature established
            that the practice and procedure under the repealed statute
            continues in full force and effect as part of the common
            law of the Commonwealth until the time that general rules
            are     promulgated.     42    Pa.C.S.A.     §    20003(b);
            Commonwealth v. Kelly, . . . 465 A.2d 1301, 1303-1304
            ([Pa.Super.] 1983).

Id.



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            to provide defendant with a copy of its file, and the
            transcripts from the trial, and sentencing in this case.” As
            noted, the Clerk of Courts had previously provided [Ortiz-
            Lugo] with the full docket information.          His various
            pleadings in this matter do not set forth what claims he
            intends to pursue, how the documents are necessary in
            order to pursue such claims, or any other basis to
            determine whether there was a compelling reason to grant
            the request. Accordingly, pursuant to Ballem, this issue is
            meritless.6
                     5
                       See notation by the Clerk of Courts on
                     November 4, 2015 correspondence filed of
                     record.
                     6
                       [Ortiz-Lugo]’s November 30, 2015 request
                     for transcripts pre-dated the filing of the
                     current P.C.R.A. Petition. Production of trial
                     transcripts and sentencing proceedings are
                     completely unrelated to [Ortiz-Lugo]’s
                     current claim of ineffectiveness based upon
                     abandonment on appeal or the application
                     of any exception to the statutory time
                     requirements.      Information relevant to
                     those claims is contained in the docket
                     entries, a copy of which [Ortiz-Lugo] has
                     been previously provided.

1925(a) Op. at 10-11.         We agree with the sound reasoning of the PCRA

court, which did not abuse its discretion in denying Ortiz-Lugo’s request for

transcripts.

       Order affirmed.11




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       11
         For the reasons stated above, Ortiz-Lugo’s September 26, 2016
“motion for order to direct the lower court to provide court records and
transcripts” is hereby denied.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/11/2017




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