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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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