IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CRIMINAL DIVISION O P I N I O N. BY: WRIGHT, J. October 24, 2014

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1 DO NOT PUBLISH Commonwealth v. Ortiz -- No Wright, J. October 24, Criminal Murder Robbery -- Criminal Conspiracy to Commit Robbery -- PCRA -- Pa. R.A.P. 1925(a) -- Timeliness. A PCRA petitioner cannot rely on a new constitutional rule as a basis for application of the PCRA s time-bar exception for a newly recognized and retroactively applied constitutional rule unless the United States Supreme Court or the Supreme Court of Pennsylvania held that the new rule applies retroactively. IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CRIMINAL DIVISION COMMONWEALTH OF PENNSYLVANIA : : v. : No : MANUEL ORTIZ : O P I N I O N BY: WRIGHT, J. October 24, 2014 This Opinion is written pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure. Defendant, Manuel Ortiz, appeals from this Court s August 11, 2014 Order denying his Petition for Post-Conviction Collateral Relief, as amended. The Petition was determined to be untimely filed pursuant to the October 30, 2013 ruling of the Supreme Court of Pennsylvania in Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), cert. denied sub nom. Cunningham v. Pennsylvania, 134 S.Ct (2014), that the holding of Miller v. Alabama, 132 S.Ct (2012), does not apply retroactively to 1

2 cases on collateral appeal. A review of the record and applicable law demonstrates that Defendant s claim that his Petition was timely filed pursuant to an exception to the PCRA s time bar lacks merit and, therefore, his appeal should be dismissed. BACKGROUND On the afternoon of October 26, 1994, Defendant left school and walked to the corner of Howard and Shippen Streets in the City of Lancaster where he planned to sell drugs and hang out with his friends. (N.T. Trial Vol. 5 at 1011: :9.) Defendant met with Levar Jones, a friend and classmate, and the two discussed plans to travel to Chicago to visit a relative of Jones. (N.T. Trial Vol. 5 at 1017:9-1018:1.) However, Jones did not have enough money to pay for the train ticket. (N.T. Trial Vol. 5 at 1031:7-17.) To obtain the money for the train ticket, Defendant suggested buying an eight ball of crack cocaine to resell. (N.T. Trial Vol. 5 at 1031:20-24.) Jones then told Defendant that he planned to rob a taxicab driver to obtain the money for the ticket. (N.T. Trial Vol. 5 at 1031: :3.) Defendant agreed to get a taxicab with Jones, and the two got into a taxicab driven by Brian Whetts. (N.T. Trial Vol. 5 at 1038: :7.) They asked to be taken to the area near The Steakout restaurant on Queen Street in Lancaster where Defendant knew he could purchase crack cocaine. (N.T. Trial Vol. 5 at 1038: :15.) As Defendant and Jones exited the taxicab, Whetts was fatally shot in the back with Defendant s gun. (N.T. Trial Vol. 6 at 1142:17-25.) Defendant and Jones fled from the scene to the home of Angela Nolley. (N.T. Trial Vol. 4 at 702:5-14.) While there, Defendant and Jones discussed the shooting with Nolley in great detail. (N.T. Trial Vol. 4 at 708:16-710:20.) Nolley testified that, after hearing that 2

3 Whetts had died, Defendant and Jones celebrated their achievement. (N.T. Trial Vol. 4 at 713:21-714:22.) Defendant and Jones were apprehended later that evening. (N.T. Trial Vol. 5 at 909:2-16.) Defendant was charged with Criminal Homicide, 1 Robbery, 2 and Criminal Conspiracy. 3 At the time of the crimes, Defendant was sixteen years of age. (N.T. Trial Vol. 5 at 1011:8-10.) After a four-day trial, on July 17, 1995, Defendant was found guilty of all charges. Upon the criminal homicide (second-degree murder) 4 conviction, he was sentenced to life imprisonment without the possibility of parole. 5 He filed a direct appeal to the Superior Court of Pennsylvania, claiming that the trial court erred in refusing to allow him to meet with his attorney over the weekend during trial. On March 25, 1996, the appellate court affirmed the judgment of sentence, finding that sole issue to have been waived. See Commonwealth v. Ortiz, 2944 Philadelphia 1995 (Pa. Super. Ct. Mar. 25, 1996) (unpublished memorandum). Defendant did not file a petition for allowance of appeal with the Pennsylvania Supreme Court. On July 13, 2012, 6 Defendant filed a pro se Petition for Post-Conviction Collateral Relief, claiming that his mandatory sentence of life without parole for the homicide he 1 18 Pa. C.S.A Pa. C.S.A Pa. C.S.A Pa. C.S.A. 2502(b). 5 Life imprisonment is mandatory for a second-degree murder conviction. See 18 Pa. C.S.A. 1102(b). Prisoners serving a life sentence are not eligible for parole. See 61 Pa. C.S.A. 6137(a)(1). 6 The Petition is dated July 13, 2012 and was time-stamped by the Clerk of Courts on July 17, Although this discrepancy does not affect any disposition in these proceedings, the Petition will be deemed filed on July 13, 2012, pursuant to the prisoner mailbox rule. See Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa. Super. Ct. 2011) ( Under the prisoner mailbox rule, we deem a pro se document filed on the date it is placed in the hands of prison authorities for mailing. ); see also Commonwealth v. Little, 716 A.2d 1287, 1289 (Pa. Super. Ct. 3

4 committed as a juvenile was unconstitutional under the rule announced in Miller v. Alabama, 132 S.Ct (2012) (decided June 25, 2012). By Order dated August 15, 2012, I appointed Andrew S. Cooper, Esquire, to represent Defendant and granted him leave to file an amended petition. On August 20, 2012, Defendant filed a timely counseled Amended Petition for Post-Conviction Collateral Relief, which raises the same issue as contained in the original Petition. 7 On September 4, 2012, the Commonwealth filed a timely Answer to the Amended Petition. By Opinion dated January 17, 2014, I issued, upon my own motion, an Order directing that the Petition, as amended, would be held in abeyance pending the decision of the United States Supreme Court on whether to grant a writ of certiorari in Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013). On June 19, 2014, the Commonwealth filed a Supplemental Answer to the Amended Petition, informing the Court that the United States Supreme Court denied the petition for a writ of certiorari in Cunningham. See 134 S.Ct (June 9, 2014) (denying certiorari). Accordingly, the Commonwealth argued that the Supreme Court of Pennsylvania s holding in Cunningham that Miller is not retroactively applicable to PCRA appeals became binding 1998) ( We therefore hold that the prisoner mailbox rule is applicable to petitions filed pursuant to the PCRA.... ). 7 In the Amended Petition, Defendant also contends that his sentence of life without parole is illegal and unconstitutional because he did not cause the victim s death and because he was not an accomplice in the victim s homicide. (See Am. Pet. 19.) To the extent that he attempts to plead an additional basis for relief, his effort fails for numerous reasons, including that the jury convicted Defendant of second-degree murder, Defendant did not raise on direct appeal the factual contentions he now makes, and a PCRA appeal is not an appropriate venue for his contentions, especially when filed at this late juncture. In any event, his contentions ring hollow, given the ample evidence surrounding his involvement with the victim s death. 4

5 on Defendant. The Commonwealth asked the Court to dismiss the PCRA appeal as untimely. On August 11, 2014, I issued an Order denying the Petition, as amended, as untimely filed pursuant to the October 30, 2013 ruling of the Supreme Court of Pennsylvania in Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), that the holding of Miller v. Alabama, 132 S.Ct (2012), is not retroactively applicable to cases on collateral appeal. Defendant initiated the instant appeal with the filing of a counseled Notice of Appeal on September 10, On September 16, 2014, I issued an Order directing Defendant to file a statement of matters complained of on appeal within 21 days and directing the Commonwealth to file a response within 10 days thereafter. 8 Defendant timely filed his Statement on October 7, The Commonwealth timely filed its Response on October 15, DISCUSSION This appeal is governed by the Post-Conviction Relief Act ( PCRA ), 42 Pa. C.S.A The PCRA provides for an action by which a defendant convicted of a crime he or she did not commit or serving an illegal sentence may obtain collateral relief. 42 Pa. C.S.A Ordinarily, a PCRA petition must be filed within one year of the date that the judgment against the defendant becomes final. Id. 9545(b)(1). The PCRA explains that a judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States 8 This Order was issued pursuant to Pa.R.A.P. 1925(b). 5

6 and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review. Id. 9545(b)(3). [T]he time limitations pursuant to... the PCRA are jurisdictional. Commonwealth v. Jackson, 30 A.3d 516, (Pa. Super. Ct. 2011) (quoting Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. Super. Ct. 1999)). [Jurisdictional time] limitations are mandatory and interpreted literally; thus, a court has no authority to extend filing periods except as the statute permits. Id. (same). Thus, [i]f a PCRA petition is untimely, neither [the Superior] Court nor the trial court has jurisdiction over the petition. Without jurisdiction, we simply do not have the legal authority to address the substantive claims. Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa. Super. Ct. 2014) (quoting Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010)). Defendant did not file his Petition within one year of the time that his judgment of sentence became final. In fact, he filed it more than 16 years after the date of final judgment. 9 Nevertheless, an otherwise untimely petition may be considered by the Court where the petitioner alleges and proves one of the following exceptions as set forth in the PCRA: (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; 9 Upon Defendant s direct appeal, the Superior Court of Pennsylvania affirmed his judgment of sentence on March 25, Defendant did not file a petition for allowance of appeal with the Pennsylvania Supreme Court. Therefore, his sentence became final on April 24, See 42 Pa. C.S.A. 9545(b)(3) (stating that a judgment becomes final at the conclusion of direct review... or at the expiration of time for seeking the review. ); see also Pa.R.A.P. 1113(a) (providing that an appellant has 30 days from the entry of a Superior Court order within which to file a petition for allowance of appeal with the Supreme Court of Pennsylvania). The Petition was filed on July 13,

7 (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). If a petitioner invokes any of the three exceptions, the petition shall be filed within 60 days of the date the claim could have been presented. Id. 9545(b)(2). It is the defendant s burden to plead and prove that one of these exceptions to the one-year time requirement applies. Commonwealth v. Bronshtein, 752 A.2d 868, 871 (Pa. 2000). Defendant has not carried that burden in this case. Defendant seeks to establish that he satisfied the exception contained in Section 9545(b)(1)(iii) by arguing that the new constitutional right recognized by the United States Supreme Court in Miller v. Alabama, 132 S.Ct (2012), entitles him to relief. (See Am. Pet. 22.) Defendant filed his pro se Petition within 60 days of the Miller decision. 10 Accordingly, if he proves that the invoked exception applies, his otherwise untimely Petition becomes timely. In Miller, the Court held that mandatory life sentences without parole violate the Eighth Amendment s ban on cruel and unusual punishment when applied to persons, like Defendant, who were juveniles at the time of the offense. See 132 S.Ct. at Relying on Miller, Defendant claims that his sentence of life without parole, which was imposed on him for the murder that he committed when he was 16 years old, is unconstitutional. 10 Miller was decided on June 25, The Petition was filed on July 13,

8 However, as noted above, Section 9545(b)(1)(iii) requires that the new constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania... has been held by that court to apply retroactively. 42 Pa. C.S.A. 9545(b)(1)(iii) (emphasis added). Thus, in order to fit under this exception to the PCRA s time bar, a PCRA petitioner must assert relief based on a constitutional right that was newly recognized and retroactively applied by either the United States Supreme Court or the Supreme Court of Pennsylvania. Seskey, 86 A.3d 237, (Pa. Super. Ct. 2014) (quoting Commonwealth v. Copenhefer, A.2d 646, 649 (Pa. 2007)). Regrettably, the Miller Court did not indicate whether its decision is to be applied retroactively. The Supreme Court of Pennsylvania, however, has decided the issue. In Cunningham, the Pennsylvania Supreme Court, in reviewing a timely PCRA appeal, held that the constitutional right announced by the United States Supreme Court in Miller does not apply retroactively. See Cunningham, 81 A.3d 1, 2, (Pa. 2013) (explaining that applying settled principles of appellate review, nothing in Appellant's arguments persuades us that Miller s proscription of the imposition of mandatory lifewithout-parole sentences upon offenders under the age of eighteen at the time their crimes were committed must be extended to those whose judgments of sentence were final as of the time of Miller s announcement. ). 11 Later, in Seskey, supra, our Superior Court addressed Miller and Cunningham in the context of an otherwise-untimely PCRA petition and held that an appellant cannot rely upon Miller or subsection 9545(b)(1)(iii) 11 The Cunningham defendant was convicted of second-degree murder for shooting and killing a victim when he and two accomplices robbed occupants of a vehicle at gunpoint. The Cunningham defendant was 17 years old at the time. See 81 A.3d at 2. 8

9 to establish jurisdiction over [an] untimely PCRA Petition in any Pennsylvania court. 86 A.3d at 243. Considering the Cunningham Court s ruling that Miller is not retroactive and the guidance provided by the Seskey Court, it is clear that Defendant cannot rely on the Miller decision as a basis for application of the time-bar exception for a newly recognized and retroactively applied constitutional right, which is set forth at Section 9545(b)(1)(iii) of the PCRA. Because Defendant failed to establish any timeliness exception, his otherwise-untimely Petition remained untimely filed. Consequently, this Court lacked jurisdiction to review the merits of Defendant s substantive claim. CONCLUSION For the reasons set forth above, Manuel Ortiz s Petition was untimely, with no applicable exception, and had to be denied without further proceedings. This Court respectfully requests that the Superior Court dismiss the appeal. Accordingly, I enter the following: 9

10 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CRIMINAL DIVISION COMMONWEALTH OF PENNSYLVANIA : : v. : No : MANUEL ORTIZ : O R D E R AND NOW, this 24 day of October, 2014, the Court hereby submits this Opinion pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure. BY THE COURT: Attest: /s/ JEFFERY D. WRIGHT JUDGE Copies to: Susan E. Moyer, Assistant District Attorney Andrew S. Cooper, Esquire, 131 East Orange Street, Lancaster, PA 17602