Com. v. Ortiz, M.

Opinion

J-S15008-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

MANUEL ORTIZ

Appellant No. 1516 MDA 2014

Appeal from the PCRA Order August 11, 2014 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0003548-1994

BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

JUDGMENT ORDER BY LAZARUS, J.: FILED APRIL 29, 2015

Manuel Ortiz appeals from the order entered in the Court of Common

Pleas of Lancaster County denying his petition filed under the Post

Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546. Because this Court does

not have jurisdiction to review Ortiz’s petition, we affirm the PCRA court’s

order.

On July 10, 1995, Ortiz was convicted of second-degree murder and

sentenced to life imprisonment without the possibility of parole. On direct

appeal, this Court affirmed Ortiz’s judgment of sentence. Thereafter, Ortiz

filed PCRA petitions in 1997, 2001, 2006 and 2010, all of which the PCRA

court denied. On August 20, 2012, following the United States Supreme

Court’s decision in Miller v. Alabama, 132 S.Ct. 2455 (2012), Ortiz filed a

fifth PCRA petition. The Court in Miller held that “the Eighth Amendment J-S15008-15

forbids a sentencing scheme that mandates life in prison without possibility

of parole for juvenile offenders.” Id. at 2469. The PCRA court denied Ortiz’

fifth petition, concluding that it was untimely filed under the PCRA. See

Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013) (holding

constitutional right announced in Miller v. Alabama is not retroactively

applicable to cases on collateral appeal).1 See also Com. v. Cristina, ---

A.3d ----, 2015 WL 1730538 (Pa. Super.), 2015 PA Super 74. Consequently,

Ortiz cannot rely upon Miller or subsection 9545(b)(iii) to establish

jurisdiction over his untimely PCRA petition in any Pennsylvania court. We

are bound by Cunningham. Therefore, we are without jurisdiction to

review Ortiz’s petition. See Commonwealth v. Chester, 895 A.2d 520,

522 (Pa. 2006) (“The PCRA's time restrictions are jurisdictional in nature.

Thus, [i]f a PCRA petition is untimely, 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.”).

____________________________________________

1 The United States Supreme Court has since denied certiorari in Cunningham. See Cunningham v. Pennsylvania, 134 S.Ct. 2724 (U.S. 2014). However, on March 23, 2015, the Supreme Court granted certiorari in Montgomery v. Louisiana, –––U.S. ––––, 2015 WL 1280236 (2015), which again presents the Miller retroactivity question. Nonetheless, until the United States Supreme Court issues its decision, we are bound by Cunningham.

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/29/2015

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