Com. v. Ortiz, J.
Com. v. Ortiz, J. No. 1801 EDA 2016
| Pa. Super. Ct. | Jun 19, 2017Background
- Ortiz was convicted in 2002 of first-degree murder, robbery, and conspiracy and sentenced to life plus 27–60 years; affirmed on direct appeal in 2003.
- In 2004 he pled nolo contendere to a separate conspiracy charge and received a concurrent 120–240 month term.
- Ortiz filed multiple PCRA petitions; his second petition was dismissed as untimely and the dismissal was affirmed in 2013.
- On March 11, 2016 Ortiz filed the instant pro se petition (treated as a first PCRA for one docket but subsequent for the murder/robbery dockets); the court appointed PCRA counsel, who later withdrew, then issued a Rule 907 notice and dismissed the petition as untimely on May 11, 2016.
- Ortiz appealed, arguing the Miller/Montgomery decisions created a new constitutional right that makes his petition timely under the §9545(b)(1)(iii) exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ortiz's 2016 PCRA petition is timely | Miller/Montgomery created a new constitutional right that applies and thus satisfies the §9545(b)(1)(iii) exception | Ortiz’s judgment became final in 2003; petition filed in 2016 is facially untimely and Miller/Montgomery do not aid him because he was 24 at the crime | Petition untimely; dismissed. Miller does not apply to defendants 18 or older at offense, so §9545(b)(1)(iii) exception not met |
Key Cases Cited
- Miller v. Alabama, 567 U.S. 460 (U.S. 2012) (held mandatory LWOP for offenders under 18 is unconstitutional)
- Montgomery v. Louisiana, 136 S. Ct. 718 (U.S. 2016) (held Miller announced a substantive rule applicable retroactively on collateral review)
- Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013) (Miller does not create a new right for offenders 18 or older)
- Commonwealth v. Furgess, 149 A.3d 90 (Pa. Super. 2016) (reaffirming that Miller does not extend to those 18 or older)
- Commonwealth v. Melendez-Negron, 123 A.3d 1087 (Pa. Super. 2015) (standard of review for PCRA denial)
- Commonwealth v. Brown, 111 A.3d 171 (Pa. Super. 2015) (timeliness of PCRA petition is jurisdictional)