Com. v. Ortiz-Lugo, L., 1225 MDA 2016

Background

Appellant Leandro Ortiz-Lugo pled nolo contendere to first-degree murder in 2003 and was sentenced to life; after a PCRA petition the judgment was vacated and he was retried and convicted in 2008, receiving life plus a consecutive sentence for PIC.
This Court affirmed the 2008 judgment on October 30, 2009; the Pennsylvania Supreme Court denied allowance of appeal on July 29, 2010, and the judgment became final on October 27, 2010.
Ortiz-Lugo filed a first PCRA petition in 2013 which the PCRA court dismissed for failing to state a timely basis for relief; appointed PCRA counsel did not file an amended petition or move to withdraw under Turner/Finley procedures.
In late 2015 Ortiz-Lugo requested docket entries and transcripts; the clerk provided docket information but denied transcript requests as there were no pending proceedings.
Ortiz-Lugo filed a pro se second PCRA petition on January 14, 2016, alleging ineffective assistance by appellate and PCRA counsel and asserting new facts (a November 5, 2015 letter) showing abandonment; the PCRA court dismissed the petition as untimely without a hearing.
On appeal, the Superior Court reviewed timeliness and the new-facts exception and affirmed the dismissal, also holding the trial court did not abuse its discretion in denying transcripts.

Issues

Issue	Ortiz-Lugo's Argument	Commonwealth's Argument	Held
Timeliness of second PCRA petition	Petition filed Jan 14, 2016 should be allowed under the new-facts exception based on a Nov 5, 2015 letter indicating his appeal was denied/abandoned	Judgment was final Oct 27, 2010; petition is facially untimely (filed well past 1-year limit) and no timely exception applies	Petition untimely; appellant did not satisfy the new-facts exception and PCRA court lacked jurisdiction to entertain it
New-facts exception (42 Pa.C.S. §9545(b)(1)(ii))	The November 5, 2015 notice constituted a newly discovered fact of counsel abandonment; he filed within 60 days of learning it	Appellant had earlier notices/orders (2013) and failed to exercise due diligence for ~30 months; thus the "new fact" was not newly discoverable	Court agrees with PCRA court: appellant failed to show due diligence, so new-facts exception not met
Request for trial and sentencing transcripts	Appellant sought transcripts from clerk to pursue claims; denial violated his right to post-conviction materials	Clerk provided docket information; transcript request came after jurisdictional deadlines and petitioner failed to show why transcripts were necessary or what claims they would support	Denial of transcript request not an abuse of discretion; request was premature and not tied to a viable, timely claim
Ineffective assistance of PCRA/appellate counsel for not obtaining transcripts or pursuing claims	Counsel was ineffective/abandoned appellant by not ordering transcripts or acting on his behalf	Ineffectiveness claims are themselves time-barred; no timely exception pleaded	Ineffective assistance claims are facially untimely and no exception was proven; dismissal affirmed

Key Cases Cited

Commonwealth v. Melendez–Negron, 123 A.3d 1087 (Pa. Super. 2015) (standard of review for PCRA dismissal)
Commonwealth v. Brown, 111 A.3d 171 (Pa. Super. 2015) (PCRA petition timeliness is jurisdictional and one-year filing rule)
Commonwealth v. Ballem, 482 A.2d 1322 (Pa. Super. 1984) (trial court discretion in producing transcripts when no pending proceedings)
Commonwealth v. Finley, 550 A.3d 213 (Pa. Super. 1988) (procedures governing counsel withdrawal in post-conviction representation)
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) (requirements for appointed counsel to seek withdrawal when no merit in PCRA claims)