Com. v. Ortiz, J.

• Court: Superior Court of Pennsylvania
• Decided: July 27, 2021
• Docket: 657 MDA 2020
• Status: Unpublished

Opinion

J-S10027-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 657 MDA 2020

Appeal from the PCRA Order Entered April 14, 2020 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0001124-2003

BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED JULY 27, 2021

Juan Ortiz appeals from the denial of his challenge to the application of

the Sex Offender Registration and Notification Act (“SORNA”)1 to him. The

court found the claim was raised in untimely Post Conviction Relief Act

(“PCRA”), 42 Pa. C.S.A. §§ 9541-9546, petition. We vacate the order and

remand.

On February 16, 2005, a jury convicted Ortiz of one count each of False

Imprisonment, Kidnapping, and Terroristic Threats, two counts of Rape, and

three counts of Indecent Assault.2 The court sentenced Ortiz to 9½ to 22

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* Retired Senior Judge assigned to the Superior Court.

1 42 Pa. C.S.A. §§ 9799.10-9799.42 (subsequently amended 2018).

2 18 Pa.C.S.A. §§ 2903, 2901, 2706, 3121, and 3126, respectively. J-S10027-21

years’ incarceration and 15 years’ probation. This Court affirmed the judgment

of sentence in December 2006. Ortiz did not seek further appellate review.

Ortiz filed a timely PCRA petition in February 2007, and the court

appointed counsel, who filed a Turner/Finley3 “no merit” letter. The court

dismissed the petition and granted counsel’s petition to withdraw. Ortiz

appealed and this Court found most claims lacked merit. However, we

remanded for a hearing on a single issue – whether trial counsel was

ineffective for failing to communicate a plea offer. After a hearing, the PCRA

court dismissed the claim, and on renewed appeal, this Court affirmed.

In December 2017, Ortiz filed a second pro se PCRA petition, and the

PCRA court appointed counsel. Before counsel had taken any court action,

Ortiz filed a third pro se petition, in February 2018, claiming SORNA should

not apply to him. After the court appointed new counsel for reasons not at

issue in this appeal, counsel filed a Turner/Finley letter and a petition to

withdraw as counsel. The Turner/Finley letter treated the third pro se

petition as a supplement to the second PCRA petition, addressed all issues,

and found none that were meritorious because counsel concluded that both

petitions were untimely PCRA petitions.

On February 11, 2020, the court entered a Notice of Intent to Dismiss

the PCRA Petition pursuant to Pennsylvania Rule of Criminal Procedure 907,

finding the petition was untimely and no exception to the PCRA time-bar ____________________________________________

3 Commonwealth v Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth

v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

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applied. Ortiz filed a response to the Notice of Intent. In April 2020, the court

dismissed the petition. The court also granted counsel’s petition to withdraw.

Ortiz filed a timely notice of appeal.

Ortiz raises two issue on appeal:

1. Did PCRA counsel and the trial court error/ where finding that 42 pa. C.S. 9799.13 and 42 pa. C.S. §9799.14; did not retroactively apply and violate petitioners’ (Juan Ortiz’s’) federal and state constitutional rights pursuant too: Commonwealth v. Muniz[,135 A.3d 178 (Pa. 2016)]?

2. Whether it is unconstitutional an illegal sentence/ under the United States and Pennsylvania, constitutions to apply the punitive provisions of Sorna retroactively to petitioners’ (Juan Ortiz’) pre-sorna conviction and sentence/ in violation of the ex post facto doctrine/ and clause/ of the United States and Pennsylvania constitutions/ insofar as being applied in the state supreme courts’ decision in [Muniz]/ which clearly resulted in an illegal an unconstitutional sentence/ when the later court declared that your instant petitioner/ a sexually violent predator/ whom must now register as a lifetime (svp) and subject to all of the sentencing requirements of (sorna) retroactively to petitioners’ prior sentence?

Ortiz’s Br. at 5.

Ortiz argues that the Pennsylvania Supreme Court in Commonwealth

v. Muniz, 164 A.3d 1189 (Pa. 2017), found SORNA punitive and held that

retroactive application of SORNA to pre-SORNA offenders violates the Ex-Post

Facto Clause of both the United States and Pennsylvania Constitutions and

infringed upon the right to reputation guaranteed by the Pennsylvania

Constitution. Ortiz then states Muniz applied retroactively on collateral

review. Ortiz’s Br. at 8. Ortiz states that the United States Constitution

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requires that state court give full retroactive effect to substantive rules of

constitutional law per Montgomery v. Louisiana, 577 U.S 190 (2016). He

closes by stating that PCRA counsel rendered deficient performance by filing

a Turner/Finley letter and erroneously finding that his petition was meritless

due to PCRA time limitations.

Until recently, a petitioner seeking to challenge SORNA registration

requirements had to do so in a timely PCRA petition. See, e.g.,

Commonwealth v. Moose, 245 A.3d 1121, 1128 (Pa.Super. 2021)

(reviewing challenges to SORNA in wake of Muniz). However, in

Commonwealth v. Lacombe, 234 A.3d 602, 617 (Pa. 2020), the

Pennsylvania Supreme Court declared that the PCRA is not the exclusive

manner for SORNA registrants to challenge their registration requirements.

Consequently, it found no merit in the notion that registrants seeking relief

from such requirements must do so in a timely PCRA petition. See id. at 617-

18.

Pursuant to Lacombe, Ortiz’s 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). We do not consider Ortiz’s raising of his

challenge in a pro se petition after the court had appointed counsel to be an

instance of hybrid representation because counsel had an independent duty

to review the record himself before filing the Turner/Finley letter. See

Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009). We therefore

vacate the order of the trial court to the extent it denied his challenge to

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SORNA registration, and remand for further proceedings consistent with this

Memorandum.4

Order vacated. Case remanded. Jurisdiction relinquished.5

Judge Murray joins the memorandum.

Judge Pellegrini files a dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 07/27/21

4 On appeal, Ortiz challenges only the dismissal of the SORNA claim. He has

waived for appellate purposes any other claim raised in the PCRA.

5 We deny Ortiz’s Application for Relief, claiming he did not receive the Commonwealth’s brief, as moot. The Commonwealth served a copy on him at the time of filing, and, in an abundance of caution, mailed a second copy to him after receiving his Application.

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