Com. v. Ortiz, J., Jr.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JULIO ORTIZ, Jr., : No. 738 MDA 2015
:
Appellant :
Appeal from the PCRA Order, April 6, 2015,
in the Court of Common Pleas of Berks County
Criminal Division at No. CP-06-CR-0004586-2012
BEFORE: FORD ELLIOTT, P.J.E., WECHT AND FITZGERALD,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 04, 2015
Julio Ortiz appeals pro se from the order filed in the Court of Common
Pleas of Berks County which dismissed, without a hearing, his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546.
On November 26, 2011, during an altercation, appellant shot
Adabell Marte-Ortiz three times in the legs. Appellant was arrested and
charged with criminal attempt -- criminal homicide; aggravated assault;
firearms not to be carried without a license; recklessly endangering another
person; and simple assault.1
* Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 901(a), 2702(a)(1) and (4), 2705, 2701(a)(1), and
2701(a)(3), respectively.
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On April 9, 2013, appellant entered a guilty plea to one count of
aggravated assault, a second degree felony, 18 Pa.C.S.A. § 2702(a)(4). In
entering this plea, the Commonwealth withdrew the other charges including
attempted homicide. Appellant indicated that he understood that the
maximum permissible sentence for the aggravated assault charge was
ten years in jail, plus a $25,000 fine. (Docket #10.) Appellant was
sentenced on April 9, 2013, and received a sentence of five to ten years of
incarceration. No post-sentence motions were filed within ten days of
sentencing, and no direct appeal was filed.
On December 16, 2014, appellant filed a PCRA petition. Appellant
argued that his sentence was illegal under Alleyne v. United States, 133
S. Ct. 2151 (2013). Osmer Deming, Esq., was appointed as PCRA counsel.
The PCRA court ordered Attorney Deming to file an amended PCRA petition.
On February 26, 2015, Attorney Deming filed a Turner/Finley2 “No Merit”
letter and a petition to withdraw. (Docket #22.) On March 11, 2015, the
PCRA court issued its Pa.R.Crim.P. 907(1) notice of intent to dismiss the
petition without a hearing and granted the petition to withdraw. The PCRA
court determined that it lacked jurisdiction and dismissed the petition on
April 7, 2015.
On appeal, appellant raises one issue for our review:
2
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Pennsylvania
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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IS THE APPELLANT’S SENTENCE A NULLITY IN LIGHT
OF THIS COURTS [sic] RULING IN COMMONWEALTH
V. NEWMAN IN WHICH THE MANDATORY
SENTENCING STATUTES HAVE BEEN FOUND TO BE
FACIALLY UNCONSTITUTIONAL?
Appellant’s brief at 7.3
All PCRA petitions, including second and subsequent petitions, must be
filed within one year of when a defendant’s judgment of sentence becomes
final. 42 Pa.C.S.A. § 9545(b)(1). The Pennsylvania Supreme Court has held
that the PCRA’s time restriction is constitutionally sound. Commonwealth
v. Cruz, 852 A.2d 287 (Pa. 2004). In addition, our supreme court has
3
Curiously, appellant asserts that he:
was sentenced to the mandatory statutes proscribed
[sic] in 42 Pa.C.S.A. 7508, as he was charged with
committing a narcotics offense. Prior to
sentencing, the Commonwealth sought, and
received, the imposition of a mandatory
sentence pursuant to statute. The Petitioner
[appellant] avers that this enhancement resulted in
an illegal mandatory minimum sentence under the
decisions rendered in Alleyne, Newman and Munday.
As a result of this illegal sentence, the Petitioner
[appellant] avers that his case must be remanded for
resentencing.
Appellant’s brief at 10 (emphasis added).
Appellant was not charged with committing a “narcotics offense” under
42 Pa.C.S.A. § 7508. Nevertheless, this court believes that this was a
mistake on appellant’s part. We have reviewed the record and located a
Memorandum of Law in support of appellant’s PCRA petition which correctly
couches the issue in terms of the crimes with which he was actually charged.
We will address this appeal as though the issue was accurately stated by
appellant in his pro se brief rather than dismiss the appeal summarily based
on what was obviously an inadvertent error.
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instructed that the timeliness of a PCRA petition is jurisdictional. If a PCRA
petition is untimely, a court lacks jurisdiction over the petition.
Commonwealth v. Callahan, 101 A.3d 118 (Pa.Super. 2014) (courts do
not have jurisdiction over an untimely PCRA); Commonwealth v.
Wharton, 886 A.2d 1120 (Pa. 2005).
In this case, appellant’s PCRA petition is facially untimely. Appellant
entered his guilty plea and was sentenced on April 9, 2013. Since no appeal
was filed, appellant’s sentence became final on May 9, 2013, which was
30 days from the judgment of sentence. Appellant had one year from this
date, or until May 9, 2014, to file a PCRA petition. Appellant filed his PCRA
petition on December 16, 2014, which is more than seven months after the
deadline imposed by the PCRA.
There are three narrow exceptions to the PCRA’s timeliness
requirements which are set forth in 42 Pa.C.S.A. § 9545:
(b) Time for filing petition--
(1) Any petition under this subchapter,
including a second or subsequent
petition, shall be filed within one year of
the date the judgment becomes final,
unless the petition alleges and the
petitioner proves that:
(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
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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.
(2) Any petition invoking an exception
provided in paragraph (1) shall be filed
within 60 days of the date the claim
could have been presented.
42 Pa.C.S.A. § 9545(b)(1) and (2).
The defendant has the burden of pleading and proving the applicability
of any exception. 42 Pa.C.S.A. § 9545(b)(1). “If the petition is determined
to be untimely, and no exception has been pled and proven, the petition
must be dismissed without a hearing because Pennsylvania courts are
without jurisdiction to consider the merits of the petition.” Commonwealth
v. Perrin, 947 A.2d 1284, 1285 (Pa.Super. 2008).
Appellant asserts that the exception found in 42 Pa.C.S.A.
§ 9545(b)(1)(iii) applies. He argues that “prior to sentencing, the
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Commonwealth sought a sentencing enhancement for the use/display of a
deadly weapon during the commission of the offense” and that “[p]ursuant
to that request, the [sentencing] [c]ourt imposed a statutory maximum term
of 5 to 10 years, with a [42 Pa.C.S.A. § 9712] enhancement.” (Appellant’s
brief at 8.) Appellant avers that this resulted in an illegal mandatory
minimum sentence under Alleyne.
Even apart from whether appellant can raise an illegality of the
sentence issue in an untimely PCRA petition, we do not agree that appellant
was sentenced under the mandatory minimum statute at 42 Pa.C.S.A.
§ 9712. Contrary to appellant’s assertion, the Commonwealth did not file a
notice of intention to seek a mandatory minimum sentence. Appellant’s
written paperwork makes no reference to a mandatory minimum sentence.
A mandatory minimum sentence was not discussed or mentioned during
appellant’s guilty plea colloquy. Moreover, reviewing the guilty plea and
sentencing transcript, there is no indication that the trial court took the
statutory mandatory minimum sentencing term into account as a factor in
sentencing appellant. Rather, the trial court noted that appellant entered a
guilty plea to aggravated assault, a second degree felony, 18 Pa.C.S.A.
§ 2702(a)(4).4 (Guilty plea and sentencing notes of testimony, 4/9/13 at 9.)
The trial court indicated that the sentence was “based upon the plea
4
The maximum sentence for conviction of this offense is ten years, plus a
$25,000 fine. 18 Pa.C.S.A. § 1103(2).
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agreement” and stated: “[t]o the degree that it’s above the guidelines, that
is the reason for that.” (Id.)
The sentence was the product of a negotiated plea agreement which
included a specific minimum sentence. The trial court accepted the plea
agreement and imposed a sentence consistent with the agreement’s terms.
Further, the five to ten-year sentence was within the statutory limits for a
second-degree felony crime. Because the trial court did not impose a
mandatory minimum sentence in this case, appellant’s claim that his
sentence is illegal is baseless.
As appellant’s PCRA petition is clearly untimely and appellant has
failed to plead and prove the applicability of any exception to the PCRA’s
time-of-filing requirements, the PCRA court lacked jurisdiction to consider
the merits of appellant’s issues and did not err in dismissing appellant’s
petition without an evidentiary hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/4/2015
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