J-S13035-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WILFREDO JUNIOR ORTIZ, JR.
Appellant No. 1479 WDA 2014
Appeal from the PCRA Order entered August 19, 2014
In the Court of Common Pleas of Erie County
Criminal Division at No: CP-25-CR-0002103-2009
BEFORE: BENDER, P.J.E., MUNDY, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED JUNE 15, 2015
Appellant, Wilfredo Junior Ortiz, Jr., appeals from the August 19, 2014
order of the Erie County Court of Common Pleas dismissing as untimely his
petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-46. We affirm.
The facts of the case can be summarized as follows. On November 9,
2009, Appellant pled guilty to robbery and firearms not to be carried without
a license. On January 13, 2010, Appellant was sentenced to 72 to 144
months’ incarceration on the robbery count, followed by 60 months of state-
supervised probation, and 36 to 72 months’ incarceration on the firearm
count, to run concurrently with the robbery count. Appellant filed a timely
motion for reconsideration, which the trial court denied on April 5, 2010.
Appellant did not file a direct appeal. On July 10, 2014, Appellant filed the
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instant PCRA petition, which the PCRA court denied on August 19, 2014.
This appeal followed.
On appeal, Appellant raises the following issue for our review:
“Whether the lower court erred in denying PCRA relief based on the finding
of untimeliness and waiver[.] Appellant’s Brief at 2.
Before we can address the merits of the claims, we must determine
the timeliness of the instant PCRA petition because we have no jurisdiction
to entertain any review of the claims if the petition is untimely.
Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011).
The PCRA contains the following restrictions governing the timeliness
of any PCRA petition.
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the
petitioner proves that:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of
the claim in violation of the Constitution or laws of this
Commonwealth or the Constitution or laws of the United
States;
(ii) the facts upon which the claim is predicated were
unknown to the petitioner and could not have been
ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States or the
Supreme Court of Pennsylvania after the time period provided
in this section and has been held by that court to apply
retroactively.
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(2) Any petition invoking an exception provided in paragraph (1)
shall be filed within 60 days of the date the claim could have
been presented.
(3) For purposes of this subchapter, a judgment becomes final at
the conclusion of direct review, including discretionary review in
the Supreme Court of the United States and the Supreme Court
of Pennsylvania, or at the expiration of time for seeking the
review.
42 Pa.C.S.A. § 9545(b).
Here, the record reflects the judgment of sentence became final on
May 5, 2010, i.e., at the expiration of the time for seeking direct review.
See 42 Pa.C.S.A. § 9545(b)(3). Because Appellant had one year from May
5, 2010 to file his PCRA petition, the current filing is untimely on its face
given it was filed on July 10, 2014.
The one-year time limitation can be overcome if a petitioner alleges
and proves one of the exceptions set forth in Section 9545(b)(1)(i)-(iii).
Appellant acknowledges that the instant PCRA petition is “patently untimely,”
Appellant’s Brief at 4, and that it is Appellant’s burden to show that it falls
within a statutory exception set forth in Section 9545(b) for this Court to
consider the appeal. Id. at 5. Yet, Appellant does not explain, let alone
allege,1 under which exception the petition falls and/or what error(s) the
PCRA court committed in not finding an applicable exception(s). In other
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1
It should be noted that the PCRA court found Appellant “fail[ed] to prove
an exception to the timeliness requirement under [Section 9545(b)(1)].”
Notice of Intent to Dismiss PCRA Pursuant to Pa.R.Crim.P. 907, 7/30/14, at
4.
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words, Appellant argues that the PCRA court erred in finding the PCRA
petition untimely, but did not bother providing any argument or authority for
this bald allegation. The claim is therefore waived.2 See Pa.R.A.P. 2119;
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1262 (Pa. Super. 2014)
(en banc) (failure to conform to the Rules of Appellate Procedure results in
waiver of the underlying issue); Commonwealth v. Brougher, 978 A.2d
373, 375-76 (Pa. Super. 2009 (failure to develop argument and cite relevant
authority for the argument results in waiver).
The instant petition is, therefore, untimely and the trial court did not
err in denying PCRA relief.3
Order affirmed.
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2
In his PCRA petition, Appellant challenged the legality of his sentence and
raised one claim of ineffective assistance of counsel for failure to challenge
the legality of the sentence, but did not address, as mentioned, the
timeliness of the petition. In Commonwealth v. Fahy, 737 A.2d 214 (Pa.
1999), our Supreme Court stated: “Although legality of sentence is always
subject to review within the PCRA, claims must still first satisfy the PCRA’s
time limits or one of the exceptions thereto.” Id. at 223. Thus, even if the
claims is couched as a legality of the sentence issue, the claim will not be
reviewed if raised in an untimely PCRA petition. Similarly, “[i]t is well
settled that allegations of ineffective assistance of counsel will not overcome
the jurisdictional timeliness requirements of the PCRA.” Commonwealth v.
Wharton, 886 A.2d 1120, 1127 (Pa. 2005).
3
The PCRA court dismissed the petition because it found it to be untimely.
It also found the issues waived for failure to file a direct appeal and/or as
vague. Because the instant petition is untimely, “[w]e need not reach this
level of review because the untimeliness of the petition goes to the trial
court’s jurisdiction to even entertain the merits of the petition.”.
Commonwealth v. Lusch, 759 A.2d 6, 9 n.1 (Pa. Super. 2000).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/15/2015
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