Com. v. Ortiz-Claudio, G. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
v.
GIOVANNI ORTIZ-CLAUDIO
Appellant No. 3 EDA 2017
Appeal from the PCRA Order November 22, 2016
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0001392-2008
BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.
MEMORANDUM BY RANSOM, J.: FILED FEBRUARY 12, 2018
Appellant, Giovanni Ortiz-Claudio, appeals from the order entered
November 22, 2016, denying as untimely his petition for collateral relief filed
under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-
9546. Additionally, appointed counsel, Stuart Wilder, Esq., has filed an
application to withdraw along with a letter of no merit pursuant to
Turner/Finley.1 We affirm, and grant counsel’s motion to withdraw.
We adopt the following statement of facts from the PCRA court opinion,
which in turn is supported by the record. See PCRA Court Op. (PCO),
7/10/2017, at 1-5. Following a May 2008 bench trial, the court found
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1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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Appellant guilty of firearms not to be carried without a license, possession with
intent to deliver (PWID), simple possession, possession of drug paraphernalia,
and resisting arrest.2 In August 2008, Appellant was sentenced to five to ten
years of incarceration on the firearms charge and a concurrent sentence of
four to eight years of incarceration on the PWID charge.
Appellant timely appealed and, his judgment of sentence was affirmed.3
See Commonwealth v. Ortiz-Claudio, 26 A.3d 1194 (Pa. Super. 2011)
(unpublished memorandum), appeal denied, 24 A.3d 863 (Pa. 2011). He did
not seek certiorari with the United States Supreme Court. Accordingly, for
purposes of the PCRA, his sentence became final on October 17, 2011.4
On August 12, 2016, Appellant filed a counseled motion seeking to
vacate his sentence and remand for resentencing, averring that the five to ten
year sentence was illegal. Appellant averred that firearms not to be carried
without a license, a felony of the third degree, carried a statutory maximum
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2See 18 Pa.C.S. § 6106(a)(1); 35 P.S. §§ 780-113(a)(30), (16), and (32);
18 Pa.C.S. § 5104, respectively.
3Appellant did not challenge the legality of his sentence on direct appeal. See
Ortiz-Claudio, 26 A.3d 1194, at *4.
4 Appellant’s judgment of sentence became final on October 17, 2011, at the
expiration of the ninety-day time period for seeking review with the United
States Supreme Court. See 42 Pa.C.S. § 9545(b)(3) (a judgment of sentence
becomes final at the conclusion of direct review or the expiration of the time
for seeking the review); Commonwealth v. Owens, 718 A.2d 330, 331 (Pa.
Super. 1998) (noting that Sup.Ct.R. 13 grants an Appellant ninety days to
seek review with the United States Supreme Court). Thus, Appellant had until
October 17, 2012, to file a timely PCRA petition.
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of seven years. See 18 Pa.C.S. §§ 6106(a)(1), 1103(3). In response, the
Commonwealth argued that Appellant’s request was subsumed by the PCRA,
and that the petition was time-barred.
Following an examination of the record, the PCRA court sent Appellant
notice of intent to dismiss pursuant to Pa.R.Crim.P. 907. Appellant filed a
response, arguing that a challenge to the legality of the sentence may never
be waived. Following a hearing, the court dismissed Appellant’s petition as
untimely and not subject to the time bar exceptions. The court allowed
counsel to withdraw but appointed new counsel to assist Appellant in
perfecting his appeal.
In response to the court’s Pa.R.A.P. 1925(b) order, counsel filed a
statement of intent to file an Anders5 brief in this Court. The court issued a
responsive opinion, finding all of Appellant’s issues waived for failure to
preserve them in his Pa.R.A.P. 1925(b) statement.
In August 2017, counsel filed an application to withdraw with this Court,
attaching his Turner/Finley “no merit” letter with proof of notice to Appellant
that he had the right to proceed pro se or retain private counsel. Appellant
did not file a response.
Before we may review the merits of Appellant's claims, we must
determine if counsel has satisfied the requirements to be permitted to
withdraw from further representation. Turner/Finley requires an
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5See Anders v. California, 87 S. Ct. 1936 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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independent review of the record by competent counsel before a PCRA court
or this Court may authorize an attorney’s withdrawal. See Commonwealth
v. Freeland, 106 A.3d 768, 774 (Pa. Super. 2014). “The necessary
independent review requires counsel to file a “no-merit” letter detailing the
nature and extent of his review and list each issue the petitioner wishes to
have examined, explaining why those issues are meritless.” Id. The
reviewing court must then conduct its own independent evaluation of the
record and agree with counsel that the petition is without merit. Id. On
appeal from the denial of a PCRA, counsel is required to “contemporaneously
serve upon his client his no-merit letter and application to withdraw along with
a statement that if the court granted counsel's withdrawal request, the client
may proceed pro se or with a privately retained attorney.” Id.Here, we find that counsel has substantially complied with the
requirements of Turner/Finley and their progeny, detailing his review of the
record and conclusion that Appellant’s sole claim is meritless. Counsel also
notified Appellant, furnished him with a copy of this letter, and advised him of
his right to proceed pro se or to retain private counsel. Attorney Wilder
additionally offered to assist Appellant in filing any response he wished to
make. Accordingly, we will grant counsel’s application to withdraw.
Next, we proceed to our independent review of Appellant’s claims.
Attorney Wilder notes Appellant’s sole issue, “a real grievance,” namely, that
his sentence of five to ten years exceeds the statutory maximum of seven
years for a felony of the third degree. See Turner/Finley Letter, at 3.
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This Court’s standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. See Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007).
We begin by addressing the timeliness of Appellant’s petition, as the
PCRA time limitations implicate our jurisdiction and may not be altered or
disregarded in order to address the merits of his claims. See
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the
PCRA, any petition for relief, including second and subsequent petitions, must
be filed within one year of the date on which the judgment of sentence
becomes final. Id. There are three 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). Any petition attempting to invoke these
exceptions “shall be filed within 60 days of the date the claim could have been
presented.” 42 Pa.C.S. § 9545(b)(2); see Commonwealth v. Gamboa-
Taylor, 753 A.2d 780, 783 (Pa. 2000).
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Appellant’s petition is untimely.6 In the lower court, Appellant argued
that a challenge to an illegal sentence may not be waived. See, e.g.,
Commonwealth v. Randal, 837 A.2d 1211, 1214 (Pa. Super. 2003).
However, the PCRA subsumes all challenges to the legality of the sentence,
and such challenges must still satisfy the PCRA’s time limits or one of the
exceptions thereto. See Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa.
1999). Appellant does not plead or prove one of the time bar exceptions.
Accordingly, the PCRA court did not err in dismissing his petition despite the
illegality of his sentence. See Ragan, 923 A.2d at 1170; Fahy, 737 A.2d at
223.
Thus, we agree with counsel that Appellant’s claim does not merit relief.
On independent review, we find no other claims of merit.
Order affirmed. Application to withdraw granted. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/12/18
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6Appellant’s petition is patently untimely. As noted above, Appellant had until
October 17, 2012, to file a timely PCRA petition. Appellant’s petition, filed
almost four years after that date, is untimely.
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