Com. v. Ortiz, J.

Superior Court of Pennsylvania

Com. v. Ortiz, J.

DecidedMay 21, 2019

Docket1708 MDA 2018

StatusUnpublished

This text of Com. v. Ortiz, J. (Com. v. Ortiz, J.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Com. v. Ortiz, J., (Pa. Ct. App. 2019).

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Opinion

J-S25020-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 1708 MDA 2018

Appeal from the PCRA Order Entered September 18, 2018 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0003492-2015

BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.: FILED: MAY 21, 2019

Juan Ortiz (Appellant) appeals from the order denying his petition

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546,

as untimely. We affirm.

Appellant’s criminal history predating the filing of the instant PCRA

petition is unclear from the record. Neither the trial court nor the parties

provide any details relating to Appellant’s underlying convictions. Based on

the record before us, we know that on some date prior to January 1, 1999,

Appellant committed a sex offense of which he was convicted and later

subjected to sex offender registration under the Pennsylvania Sex Offender

Registration and Notification Act, (SORNA).1 See 42 Pa.C.S.A. §

9799.13(3)(i).

____________________________________________

1 42 Pa.C.S.A. §§ 9799.10-9799.42. J-S25020-19

On February 8, 2016, Appellant pled guilty to failure to comply with his

registration requirements, 18 Pa.C.S.A. § 4915.1(a)(1). The same day, the

trial court ordered Appellant to serve five years of intermediate punishment.

Appellant did not file post-sentence motions or a direct appeal. Therefore,

Appellant’s judgment of sentence became final 30 days later on March 9,

2016, when the 30-day period for filing an appeal with this Court expired.

See Pa.R.A.P. 903(a).

On June 11, 2018, Appellant filed the instant PCRA petition. Appellant

asserted that his conviction and sentence under Section 4915.1(a)(1) was

illegal based on our Supreme Court’s decision in Commonwealth v. Muniz,

164 A.3d 1189 (Pa. 2017). In Muniz, our Supreme Court held that retroactive

application of the registration and reporting requirements of the Pennsylvania

SORNA violated the ex post facto clauses of the United States and

Pennsylvania Constitutions. Id. at 1223. On August 8, 2018, the PCRA court

issued notice of its intent to dismiss Appellant’s PCRA petition as untimely. On

September 18, 2018, the PCRA court formally dismissed Appellant’s PCRA

petition. This timely appeal followed.

On appeal, Appellant presents the following issue for review:

IS NOT [APPELLANT]’S CONVICTION FOR FAILURE TO COMPLY WITH REGISTRATION REQUIREMENTS UNDER 18 Pa.C.S. § 4915.1 RENDERED INVALID BY THE PENNSYLVANIA SUPREME COURT’S MUNIZ DECISION AND IS NOT [APPELLANT] ENTITLED TO CONTEST THAT CONVICTION UNDER THE PCRA BECAUSE THE SUPREME COURT IN COMMONWEALTH v. POLZER RULED THAT MUNIZ IS APPLICABLE RETROACTIVELY ON COLLATERAL REVIEW?

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Appellant’s Brief at 4.

The sole issue Appellant presents on appeal directly challenges the PCRA

court’s decision to dismiss his petition as untimely. “Pennsylvania law makes

clear no court has jurisdiction to hear an untimely PCRA petition.”

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa. Super. 2010)

(quoting Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003)).

A petitioner must file a PCRA petition within one year of the date on which the

petitioner’s judgment became final, unless one of the three statutory

exceptions apply:

(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.A. § 9545(b)(1). Until recently, a petition invoking an exception

had to be filed within 60 days of the date the claim could have been presented.

However, effective December 2017, Act 146 of 2018 amended 42 Pa.C.S.A. §

9545(b)(2), and now provides that a PCRA petition invoking a timeliness

exception must be filed within one year of the date the claim could have been

presented. See Act 2018, Oct. 24, P.L. 894, No. 146, §2 and §3. Although

-3- J-S25020-19

we note the change in the law from 60 days to one year, it does not impact

our disposition of this appeal. If a petition is untimely, and the petitioner has

not pled and proven any exception, “‘neither this 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.

Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007) (quoting Commonwealth

v. Chester, 895 A.2d 520, 522 (Pa. 2006)).

In this case, there is no dispute that Appellant did not file his PCRA

petition within one year of the date his judgment of sentence became final.

As stated above, Appellant’s judgment of sentence became final on March 9,

2016, and he filed his PCRA petition on June 11, 2018. Instead, Appellant

asserts that Muniz is applicable to both timely and untimely PCRA petitions.

Appellant argues that Muniz satisfies the newly recognized constitutional right

exception of Section 9545(b)(1)(iii).

In Commonwealth v. Murphy, 180 A.3d 402 (Pa. Super. 2018), this

Court rejected this exact claim. We explained:

Appellant’s reliance on Muniz cannot satisfy the [timeliness] exception of [S]ection 9545(b)(1)(iii). In Commonwealth v. Abdul-Salaam, [] 812 A.2d 497 ([Pa.] 2002), our Supreme Court held that,

[s]ubsection (iii) of Section 9545 has two requirements. First, it provides that the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or this [C]ourt after the time provided in this section. Second, it provides that the right “has been held” by “that court” to apply retroactively. Thus, a petitioner must prove that there is a “new” constitutional right and

-4- J-S25020-19

that the right “has been held” by that court to apply retroactively. The language “has been held” is in the past tense. These words mean that the action has already occurred, i.e., “that court” has already held the new constitutional right to be retroactive to cases on collateral review. By employing the past tense in writing this provision, the legislature clearly intended that the right was already recognized at the time the petition was filed.

Id. at 501.

Here, we acknowledge that this Court has declared that, “Muniz created a substantive rule that retroactively applies in the collateral context.” Commonwealth v.

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