J-S51025-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

WILFREDO ORTIZ

                            Appellant               No. 285 MDA 2014


                 Appeal from the PCRA Order January 16, 2014
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0004618-1998


BEFORE: BOWES, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                         FILED SEPTEMBER 24, 2014

       Wilfredo Ortiz appeals pro se from the order entered on January 16,

2014, in the Court of Common Pleas of Berks County, dismissing, as

untimely, his third petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541

newly recognized constitutional right applies to his case,1 and cites the

United States Supreme Court decision in Miller v. Alabama,         132 S.Ct.

2455 (U.S. 2012), wherein the Court he

parole for those under the age of 18 at the time of their crimes violates
____________________________________________


1
  The PCRA sets forth three exceptions that allow for review of an untimely
PCRA petition: (1) governmental interference; (2) the discovery of
previously unknown facts; and (3) a newly-recognized constitutional right.
42 Pa.C.S. § 9545(b)(1)(i)-(iii).
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Miller, 132 S.Ct. at 2460 (emphasis added). Based upon the following, we

affirm.

          On November 24, 2000, a jury convicted Ortiz of murder of the first

degree, murder of the second degree, and various other offenses. Ortiz was

24 years old when he committed the crimes underlying these convictions. 2

The trial court sentenced him to life imprisonment, and this Court affirmed

the judgment of sentence.          Commonwealth v. Ortiz, 792 A.2d 617 (Pa.

Super. 2001) (unpublished memorandum, filed November 19, 2001).           No

petition for allowance of appeal was filed with the Pennsylvania Supreme

Court. Thereafter, on July 11, 2002, Ortiz filed a timely pro se motion for

PCRA relief, and t                                                          -



petition to withdraw, and, after providing Ortiz notice of intent to dismiss,

                                                    November 19, 2002.    No

appeal was taken. Thereafter, on July 24, 2006, Ortiz filed a second PCRA

petition, which was dismissed as untimely. On appeal, this Court affirmed,

and the Pennsylvania Supreme Court denied allowance of appeal.           See




____________________________________________


2
    See




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Commonwealth v. Ortiz, 964 A.2d 442 (Pa. Super. 2008) (unpublished

memorandum), appeal denied, 971 A.2d 492 (Pa. 2009).



petition, which Ortiz filed August 27, 2012.3      In this third petition, Ortiz

seeks                                          -




section and has been held by that court

9545(b)(1)(iii).




          Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2014)

(quotations and citation omitted), cert. denied, 134 S. Ct. 2695 (U.S. 2014).

       PCRA timeliness requirement, however, is mandatory and jurisdictional

              Id. (citation omitted).

        Here, Ortiz, in relying on the United States Supreme Cour

in Miller, supra,4 contends that he was 24 years of age but not mature at
____________________________________________


3
    Ortiz, having been granted an extension, timely complied with the PCRA

pursuant to Pa.R.A.P. 1925(b).
4

f
                                                                    -day period

(Footnote Continued Next Page)


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the time of his crime, and argues that Miller should apply to his case



Amendment of the U.S. Constitution, for the courts to treat anyone with an



no relief.

      In Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013),

appeal denied, 81 A.3d 75 (Pa. 2013), the two appellants, who were 19 and

21 years of age at the time of their underlying crimes, and sentenced to life

imprisonment, similarly claimed:

      [T]hat 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 indicates that the human mind
      does not fully develop or mature until the age of 25, it would be
      a violation of equal protection for the courts to treat them or
      anyone else with an immature brain, as adults. Thus, they
      conclude that the holding in Miller should be extended to them


                       _______________________
(Footnote Continued)

Commonwealth v. Brandon, 51 A.3d 231, 235 (Pa. Super. 2012). Here,
the United States Supreme Court decided Miller on June 25, 2012, and

later. Nevertheless, pursuant to the prisoner mailbox rule,               pro
se PCRA petition is deemed to be filed on the day it is placed in the hands of
prison authorities for mailing when it was handed to prison officials. See
Commonwealth v. Robinson, 12 A.3d 477, 479 n.2 (Pa. Super. 2011).

       Here, the certified record contains the mailing envelope used for the
petition, but the envelope has been cut and saved without the portion
bearing the postmark. However, a hand-dated proof of service attached to
the petition reflects the date of August 21, 2012      within 60 days of the
Miller decision. See 42 Pa.C.S. § 9545(b)(2); Brandon, supra.



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J-S51025-14


      as they were under the age of 25 at the time of the murder and,
      as such, had immature brains.

Id. at 764. This Court rejected that argument, co

contention that a newly-recognized constitutional right should be extended

to others does not render their petition timely pursuant to section

                 Id. (emphasis in original).

      As in Cintora                                   -recognized constitutional

right should be extended to cover his circumstances does not provide him

with a § 9545(b)(1)(iii) timeliness exception. Further, even had Ortiz

actually been under 18 years of age at the time he committed these crimes,

he would not be entitled to relief, as the Pennsylvania Supreme Court has

determined that the right recognized in Miller does not apply retroactively,

and   the   United   States   Supreme   Court   has    denied   certiorari.   See

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

134 S.Ct. 2724 (U.S. 2014). Accordingly, the PCRA court properly dismissed



      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/24/2014




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