Com. v. Ortiz, J.

J-S44001-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUAN ORTIZ :
:
Appellant : No. 1691 MDA 2021
Appeal from the PCRA Order Entered November 16, 2021
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0001124-2003
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY PANELLA, P.J.: FILED: MARCH 13, 2023
Juan Ortiz appeals, pro se, from the order dismissing his second petition
for relief filed pursuant to the Post Conviction Relief Act (“PCRA”). See 42
Pa.C.S.A. §§ 9541-9546. Ortiz challenges the application of the Sex Offender
Registration and Notification Act (“SORNA”) to him. See 42 Pa.C.S.A.
§§ 9799.51-9799.75. We affirm.
On February 16, 2005, a jury convicted Ortiz of three counts of indecent
assault, two counts of rape, and one count each of false imprisonment,
kidnapping, and terroristic threats, arising out of Ortiz’s rape of his 20-year-
old daughter in February 2003. The trial court sentenced Ortiz to 9½ to 22
years in prison and 15 years of probation. The trial court also determined that
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* Retired Senior Judge assigned to the Superior Court.
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Ortiz was a sexually violent predator and notified Ortiz of his lifetime
registration and reporting requirements under Megan’s Law III. See 42
Pa.C.S.A. §§ 9795.1-9799.4 (expired). This Court affirmed the judgment of
sentence. See Commonwealth v. Ortiz, 1943 MDA 2005 (Pa. Super. filed
Dec. 1, 2006) (unpublished memorandum).
In February 2007, Ortiz filed a timely PCRA petition. The PCRA court
dismissed the petition. This Court found most claims lacked merit but
remanded for a hearing on a single issue – whether trial counsel was
ineffective for failing to communicate a plea offer. See Commonwealth v.
Ortiz, 604 MDA 2009 (Pa. Super. filed Dec. 2, 2010) (unpublished
memorandum). After a hearing, the PCRA court dismissed the claim, and this
Court affirmed the dismissal. See Commonwealth v. J.O., 577 MDA 2011
(Pa. Super. filed Feb. 6, 2012) (unpublished memorandum).
In December 2017, Ortiz filed a second pro se PCRA petition, and a
supplemental petition, arguing that SORNA should not apply to him. The PCRA
court appointed counsel, who filed a Turner/Finley1 letter and a petition to
withdraw as counsel. The PCRA court entered a Pa.R.Crim.P. 907 notice,
finding the petition was untimely and Ortiz did not invoke any exception to
the PCRA time-bar. Thereafter, the PCRA court dismissed the petition and
granted counsel’s petition to withdraw. This Court, in a divided memorandum,
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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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vacated the order and remanded the case to the PCRA court for
reconsideration of Ortiz’s challenge to SORNA, pursuant to Commonwealth
v. Lacombe, 234 A.3d 602 (Pa. 2020). See Commonwealth v. Ortiz, 657
MDA 2020 (Pa. Super. filed Jul. 27, 2021) (unpublished memorandum).
On August 13, 2021, the PCRA court entered a Rule 907 notice. Ortiz
filed a response. Thereafter, on November 16, 2021, the PCRA court dismissed
the petition. This timely appeal followed.2
On appeal, Ortiz raises the following questions for our review:
1. Did the Court of Common Pleas of Berks County [err] in its
determination that an evidentiary hearing was not required
when requested by [Ortiz] to present evidence of his innocence
when the court is well-aware [Ortiz] is a layman and can barely
speak English, let alone be expected to fully comply with all
mandated rules of procedure and such evidence of actual
innocence has been presented to the court numerous times
before?
2. Did the Court of Common Pleas of Berks County err in its
determination that the underlying facts of the case do not
implicate whether SORNA requirements imposed on [Ortiz] are
punitive post-[Commonwealth v.] Muniz[, 164 A.3d 1189(Pa. 2017) (plurality)]?
Appellant’s Brief at 3 (some capitalization omitted).
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2 Ortiz’s appeal was docketed on December 20, 2021, which is outside the
required 30-day period to file an appeal. See Pa.R.A.P. 903(a). However, Ortiz
dated and mailed the appeal on December 15, 2021. See Trial Court Opinion,
1/27/22, at 1 (stating that a “timely notice of appeal was filed on December
15, 2021[,] and received by the [trial c]ourt on December 20, 2021.”). “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.” Commonwealth v.
Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011); see also Pa.R.A.P. 121(f).
Accordingly, Ortiz timely filed his appeal.
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Preliminarily, the Pennsylvania Supreme Court determined that SORNA
registrants should not be restricted to using the PCRA as the sole means for
challenging registration requirements. See Lacombe, 234 A.3d at 617.
Consequently, SORNA registrants seeking relief from such requirements need
not do so in a timely PCRA petition. See id. at 617-18. Therefore, despite the
fact that Ortiz’s PCRA petition is facially untimely, his challenge to his sex
offender registration is not subject to the PCRA’s time limits. See
Commonwealth v. Smith, 240 A.3d 654, 658 (Pa. Super. 2020).
A constitutional challenge to the retroactive application of SORNA
presents a question of law, and our scope of review is plenary and standard
of review is de novo. See Commonwealth v. Morgan, 258 A.3d 1147, 1152
(Pa. Super. 2021).
Ortiz contends that his lifetime registration requirements as an SVP are
not retroactively applicable pursuant to Muniz. See Appellant’s Brief at 7-8.
Ortiz highlights that he could challenge the application of the sexual offender
registration statute outside the PCRA’s framework based upon Lacombe. See
id. at 8-9. Ortiz also argues that the PCRA court should have held an
evidentiary hearing to decide this issue. See id. at 10.
At the time of his convictions, Ortiz was subject to the registration
requirements of Megan’s Law III. Since that time, our laws governing sexual
offender registration have undergone several changes. See Lacombe, 234
A.3d at 608-17 (explaining the history of changing sexual offender registration
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laws following Megan’s Law). Notably, in response to Muniz,3 the case relied
upon by Ortiz, the General Assembly divided SORNA into two subchapters.
Ortiz is subject to the registration requirements established in Subchapter I of
SORNA because he committed his offenses in February 2003, and his
registration requirements have not expired. See 42 Pa.C.S.A. § 9799.52(1)
(providing that Subchapter I applies to individuals who were “convicted of a
sexually violent offense committed on or after April 22, 1996, but before
December 20, 2012, whose period of registration with the Pennsylvania State
Police … has not expired”).
In Lacombe, our Supreme Court held that the registration requirements
set forth in Subchapter I are nonpunitive in nature. See Lacombe, 234 A.3d
at 626. Therefore, retroactive application of Subchapter I of SORNA does not
violate the ex post facto clause. See id. at 626-27.4
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3 In Muniz, our Supreme Court held that registration requirements
established by SORNA constitute criminal punishment rather than a civil
penalty, and therefore, their retroactive application violates the ex post facto
clauses of the United States and Pennsylvania Constitutions. See Muniz, 164
A.3d at 1193, 1223. Later, in Commonwealth v. Butler, 173 A.3d 1212,
1217-18 (Pa. Super. 2017), this Court declared unconstitutional section
9799.24(e)(3) of SORNA, which outlined SVP designation procedures.
4 We note that our Supreme Court concluded that the registration and
notification requirements for SVPs under Subchapter H of SORNA, which does
not apply to Ortiz, do not constitute criminal punishment. See
Commonwealth v. Butler, 226 A.3d 972, 993 (Pa. 2020) (“Butler II”). The
Court held that the procedure for designating individuals as SVPs “remains
constitutionally permissible” in light of the fact that the reporting requirements
are nonpunitive. Id. at 976.
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Based upon the foregoing, Ortiz’s lifetime registration requirement
remains valid, and he is not entitled to relief on his claim. See Smith, 240
A.3d at 657 (“Because offender registration requirements evolve pursuant to
the legislative decisions of our General Assembly, registrants must comply
with current law.” (emphasis in original)). Additionally, Ortiz’s failure to
establish any genuine issue of material fact demonstrates that the PCRA court
properly dismissed his petition without a hearing. See Commonwealth v.
Maddrey, 205 A.3d 323, 328 (Pa. Super. 2019) (stating that “[t]here is no
absolute right to an evidentiary hearing on a PCRA petition, and if the PCRA
court can determine from the record that no genuine issues of material fact
exist, then a hearing is not necessary.” (citation omitted)).5
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5 We note that Ortiz raises an argument that he was innocent of the crimes.
See Appellant’s Brief at 9-10. However, Ortiz’s bald argument is not supported
by pertinent case law or analysis; therefore, it is waived. See
Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. Super. 2009) (noting
that “where an appellate brief fails to provide any discussion of a claim with
citation to relevant authority or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived.”); see also
Pa.R.A.P. 2119(a). In any event, this claim is subject to the PCRA’s
jurisdictional requirements. See Commonwealth v. Abu-Jamal, 833 A.2d
719, 737-738 (Pa. 2003). Accordingly, Ortiz’s PCRA petition was untimely
filed, and he fails to invoke any exceptions to the PCRA’s time-bar. See 42
Pa.C.S.A. § 9545(b)(1).
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/13/2023
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