J-S11039-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  :    IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                   Appellee                    :
                                               :
             v.                                :
                                               :
MELVIN ORTIZ,                                  :
                                               :
                   Appellant                   :       No. 1252 MDA 2014

             Appeal from the PCRA Order entered on July 16, 2014
                in the Court of Common Pleas of Berks County,
                Criminal Division, No. CP-06-CR-0001050-1998

BEFORE: PANELLA, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                        FILED FEBRUARY 20, 2015

        Melvin Ortiz (“Ortiz”) appeals from the Order dismissing his fifth

Petition for relief pursuant to the Post Conviction Relief Act (“PCRA”). See

42 Pa.C.S.A. §§ 9541-9546. We affirm.

        In 1997, Ortiz was convicted of murder of the second degree, robbery,

aggravated assault, recklessly endangering another person, possessing

instruments of crime, criminal attempt, and criminal conspiracy.1 Ortiz was

17 years old at the time of the crime. The trial court sentenced Ortiz to life

in prison without the possibility of parole.

        This Court affirmed the judgment of sentence. See Commonwealth

v. Ortiz, 760 A.2d 430 (Pa. Super. 2000) (unpublished memorandum).




1
    18 Pa.C.S.A. §§ 2502(b), 3701, 2702, 2705, 907, 901, 903.
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Ortiz did not file a petition for allowance of appeal with the Supreme Court of

Pennsylvania.

      Ortiz subsequently filed four PCRA Petitions, each of which was

dismissed by the PCRA court. This Court affirmed the dismissal of all four

Petitions.

      Ortiz filed the instant PCRA Petition in 2012, following the United

States Supreme Court’s decision in Miller v. Alabama, 132 S. Ct. 2455

(2012).2 The PCRA court dismissed the Petition.      Ortiz filed a timely Notice

of Appeal and a court-ordered Pennsylvania Rule of Appellate Procedure

1925(b) Concise Statement of Matters Complained of on Appeal.

      On appeal, Ortiz raises the following question for our review: “Whether

Miller [] applies retroactively to cases on collateral review?”        Brief for

Appellant at 2.

             We review an order dismissing a petition under the PCRA
      in the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court
      and the evidence of record. We will not disturb a PCRA court’s
      ruling if it is supported by evidence of record and is free of legal
      error.



2
   In Miller, the Supreme Court held that sentencing schemes which mandate
life in prison without parole for defendants who committed their crimes while
under the age of eighteen violates the Eighth Amendment’s prohibition on
“cruel and unusual punishments.” Miller, 132 S. Ct. at 2460. The Supreme
Court reasoned that, in light of a juvenile’s diminished culpability and
heightened capacity for change, mandatory juvenile sentencing schemes
pose too great a risk of disproportionate punishment, in contravention of the
Eighth Amendment. Id. at 2469.



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Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      Ortiz claims that Miller should apply retroactively, that the mandatory

life sentence should be vacated, and that the case should be remanded for

resentencing. Brief for Appellant at 6, 10.

      Initially, under the PCRA, any 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.A. § 9545(b)(1) (emphasis added). A judgment

of sentence becomes final “at the conclusion of direct review, including

discretionary review in the Supreme Court of Pennsylvania, or at the

expiration of time for seeking the review.” Id. § 9545(b)(3). The PCRA’s

timeliness requirements are jurisdictional in nature and a court may not

address the merits of the issues raised if the PCRA petition was not timely

filed. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

      Here, Ortiz’s Petition is facially untimely under the PCRA.    See 42

Pa.C.S.A. § 9545(b).

      However, Pennsylvania courts may consider an untimely petition if the

appellant can explicitly plead and prove one of three exceptions set forth

under 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any PCRA petition invoking one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094.




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      Here, Ortiz invokes the newly recognized constitutional right exception

codified at 42 Pa.C.S.A. § 9545(b)(1)(iii).   Ortiz asserts that his sentence

was unconstitutional under Miller’s prohibition against life sentences without

the possibility of parole for juveniles. Brief for Appellant at 6-7; see also

Miller, 132 S. Ct. at 2460.

      However, in order to invoke the exception, the deciding court must

apply the right retroactively. See 42 Pa.C.S.A. § 9545(b)(1)(iii). Although

the United States Supreme Court did not address the retroactive application

of Miller in its holding, the Pennsylvania Supreme Court ruled that Miller

does not apply retroactively to juveniles in Pennsylvania whose judgments of

sentence were final at the time Miller was decided.      Commonwealth v.

Cunningham, 81 A.3d 1, 11 (Pa. 2013), cert. denied, Cunningham v.

Pennsylvania, 134 S. Ct. 2724 (2014); see also Commonwealth v.

Seskey, 86 A.3d 237, 243 (Pa. Super. 2014) (holding that this Court is

confined by the Cunningham decision).3        Accordingly, Ortiz has failed to

plead and prove the exception provided in 42 Pa.C.S.A. § 9545(b)(1)(iii) to

overcome the timeliness of his Petition.




3
 The United States Supreme Court granted certiorari in Toca v. Louisiana,
135 S. Ct. 781 (Dec. 12, 2014), to determine the retroactivity of Miller.
However, the Supreme Court subsequently dismissed certiorari under United
States Supreme Court Rule 46.1. See Toca v. Louisiana, 2015 U.S. LEXIS
909 (Feb. 3, 2015).


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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/20/2015




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