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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 MARCH 30, 2016

Manuel Ortiz filed a petition for allowance of appeal with our Supreme

Court from our judgment order, which affirmed the trial court’s order

denying his petition filed under the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546. The Supreme Court of Pennsylvania remanded for

further proceedings consistent with Montgomery v. Louisiana, 136 S. Ct.

718 (2016). Accordingly, we reverse and remand for resentencing.

On July 10, 1995, Ortiz was sentenced to life imprisonment without

the possibility of parole for second-degree murder and an additional 5 to 10

years’ imprisonment for robbery and criminal conspiracy. Ortiz was sixteen

years old at the time he committed the underlying offenses. 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 J-S15008-15

court denied. On August 20, 2012, Ortiz filed a fifth PCRA petition claiming

that he was entitled to relief pursuant to Miller v. Alabama, 132 S. Ct.

2455 (2012), which held that “the Eighth Amendment 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, and accordingly, the

court lacked jurisdiction to consider it. Ortiz filed an appeal; our Court

affirmed the denial of PCRA relief on April 29, 2015, concluding that Miller

does not apply retroactively to cases on collateral appeal. See

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

constitutional right announced in Miller is not retroactively applicable to

cases on collateral appeal).

On May 28, 2015, Ortiz petitioned our Supreme Court for allowance of

appeal. On February 17, 2016, the Pennsylvania Supreme Court vacated

our Court’s disposition and remanded this matter to this Court for further

proceedings consistent with Montgomery.

After the United States Supreme Court’s holding in Montgomery,

Cunningham’s tenet that Miller cannot be applied retroactively is no longer

good law in Pennsylvania. See Commonwealth v. Secreti, 2016 PA Super

28 (Pa. Super. 2016) (interpreting Montgomery as making retroactivity

under Miller effective as of the date of the Miller decision).

Here, the trial court sentenced Ortiz, who was a juvenile at the time of

the offense, to a mandatory sentence of life imprisonment without the

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possibility of parole. In light the prohibition against cruel and unusual

punishment, see U.S. Const. amend. VIII, and the Court’s recent retroactive

application of Miller in Montgomery, we reverse the trial court’s order and

remand for resentencing.

Order reversed. Remanded for resentencing. Jurisdiction

relinquished.

Judge Wecht did not participate in the consideration or decision of this

Judgment Order.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/30/2016

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