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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ISMAEL ACEVEDO ORTIZ, : No. 3397 EDA 2016
:
Appellant :
Appeal from the PCRA Order, September 23, 2016,
in the Court of Common Pleas of Lehigh County
Criminal Division at No. CP-39-CR-0003253-2003
BEFORE: LAZARUS, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 18, 2017
Ismael Acevedo Ortiz appeals pro se the order of September 23, 2016
by the Court of Common Pleas of Lehigh County that dismissed his petition
for a writ of habeas corpus as an untimely PCRA1 petition without a
hearing. After careful review, we affirm.
The factual history of this matter as recounted by the PCRA court is as
follows:
On July 7, 2004, a jury found the appellant
guilty of Murder of the Second Degree, Robbery and
Criminal Conspiracy.[Footnote 1] The appellant and
two accomplices participated in the killing of
Jasper Watts, who was shot in the back of his head
inside his apartment.
[Footnote 1]: 18 Pa.C.S.[A.]
§[§] 2502(b), 3701(a)(1), and 903(a).
1
Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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On August 19, 2004, the appellant was
sentenced to life imprisonment for the charge of
Murder of the Second Degree. He also received
concurrent sentences of not less than six (6) years
nor more than twenty (20) years for the charge of
Robbery, and not less than five (5) years nor more
than twenty (20) years for the charge of Conspiracy
to Commit Robbery.
The appellant’s judgment of sentence was
affirmed by the Superior Court on March 6, 2006 and
thereafter the Supreme Court denied his petition for
allowance of appeal.[Footnote 2]. The appellant filed
a “Petition for Post-Conviction Collateral Relief” on
June 22, 2007. Counsel was appointed to represent
the appellant and a hearing was held on March 17,
2008. The PCRA petition was denied on June 30,
2008. The Superior Court affirmed that denial on
May 18, 2009.[Footnote 3].
[Footnote 2]: See Commonwealth v.
Acevedo-Ortiz, 898 A.2d 1123
(Pa.Super. 2006) (unpublished
memorandum)[,] appeal denied, 903
A.2d 1232 (Pa. 2006).
[Footnote 3]: Commonwealth v.
Acevedo-Ortiz, 2273 EDA 2008
(Pa.Super. May 18, 2009).
On June 21, 2016, the appellant filed
“Petitioner’s Writ for Habeas Corpus,” which is the
subject of this appeal, and an accompanying
memorandum of law. This Court treated the
appellant’s request for habeas corpus relief as a
request for PCRA relief. On August 30, 2016,
pursuant to Pa.R.Crim.P. 907(1), this Court issued a
notice of our intention to dismiss without a hearing,
and permitted the appellant twenty (20) days to
respond. The appellant failed to do so, and on
September 23, 2016, the appellant’s petition was
dismissed.
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On October 18, 2016, the appellant filed a
Notice of Appeal without the required proof of
service. Thereafter, the required Certificate of
Service was filed on October 31, 2016. This Court
issued an Order pursuant to Pa.R.A.P. 1925(b) on
November 1, 2016, and the appellant filed
“Appellant’s Concise Statement of Matters for
Appeal” (hereinafter Statement) on November 14,
2016. The appellant in that Statement reiterates his
claim that the trial court “failed to issue an official,
written, signed and sealed Sentencing
Order.”[Footnote 4]. The appellant also takes issue
with the conclusion that the PCRA statute subsumes
the writ of habeas corpus.[Footnote 5].
[Footnote 4]: Statement at p. 2.
[Footnote 5]: See 42 Pa.C.S.[A.] § 9542.
Trial court opinion, 12/12/16 at 2-3.
Before this court, appellant raises the following issues for this court’s
review:
1. Has the Commonwealth of Pennsylvania
established 191-years of staire [sic] decisis,
whereby, concluding that a guilty plea, juries
[sic] verdict of guilt, or, any pronouncements
of the Court, “absent” an official, signed and
sealed Order,” fails to meet the requisite
criteria of a lawful conviction?
2. In the “absence” of a lawful conviction, via
Official Sentencing-Order, has judgment of
sentence been “finalized”?
3. According to Jurisdictional Commonwealth Law
in reference to Post Collateral relief, codified at
42 PA. C.S.[A.] § 9545(b)(1), is
“Final Judgment” of sentence a non-waivable
prerequisite which makes PCRA available as an
avenue of judicial review and remedy?
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4. If PCRA is jurisdictionally unavailable for
judicial review of lawful imprisonment, does
Habeas Corpus statue [sic] 42 PA.C.S.[A.]
§ 6503(a)(b), provide a viable alternative for
remedy?
5. Based upon the afore-cited legal predicates,
did the lower court commit reversible error,
whereby “mischaracterizing” appellants [sic]
Writ for habeas Corpus [sic] as a PCRA
Petition?
Appellant’s brief at iv (emphasis in original; citations omitted).
“When reviewing the grant or denial of post-conviction relief, the
appellate court is limited to determining whether the lower court’s findings
are supported by the record and its order is otherwise free of legal error.
We grant great deference to findings of the PCRA court.” Commonwealth
v. Stark, 658 A.2d 816, 818 (Pa.Super. 1995) (citations omitted).
Pennsylvania law makes clear no court has
jurisdiction to hear an untimely PCRA petition.
Commonwealth v. Robinson, 575 Pa. 500, 508,
837 A.2d 1157, 1161 (2003). The most recent
amendments to the PCRA, effective January 16,
1996, provide a PCRA petition, including a second or
subsequent petition, shall be filed within one year of
the date the underlying judgment becomes final.
42 Pa.C.S.A. § 9545(b)(1); Commonwealth v.
Bretz, 830 A.2d 1273, 1275 (Pa.Super. 2003);
Commonwealth v. Vega, 754 A.2d 714, 717
(Pa.Super. 2000). A judgment is deemed 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)(3).
Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super. 2010).
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Subsequent PCRA petitions beyond a petitioner’s first petition are
subject to the following standard:
A second or subsequent petition for post-conviction
relief will not be entertained unless a strong
prima facie showing is offered to demonstrate that
a miscarriage of justice may have occurred.
Commonwealth v. Allen, 557 Pa. 135, 141, 732
A.2d 582, 586 (1999). A prima facie showing of
entitlement to relief is made only by demonstrating
either that the proceedings which resulted in
conviction were so unfair that a miscarriage of
justice occurred which no civilized society could
tolerate, or the defendant’s innocence of the crimes
for which he was charged. Allen, at 142, 732 A.2d
at 586. Our standard of review for an order denying
post-conviction relief is limited to whether the trial
court’s determination is supported by evidence of
record and whether it is free of legal error.
Commonwealth v. Jermyn, 551 Pa. 96, 709 A.2d
849, 856 (1998).
A PCRA petition, including a second or subsequent
petition, must be filed within one year of the date
that judgment of sentence becomes final. 42 Pa.C.S.
§ 9545(b)(1). A judgment becomes final for
purposes of the PCRA “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.
§ 9545(b)(3). PCRA time limits are jurisdictional in
nature, implicating a court’s very power to
adjudicate a controversy. Commonwealth v. Fahy,
558 Pa. 313, 737 A.2d 214 (1999). Accordingly, the
“period for filing a PCRA petition is not subject to the
doctrine of equitable tolling,” instead, the time for
filing a PCRA petition can be extended only if the
PCRA permits it to be extended, i.e., by operation of
one of the statutorily enumerated exceptions to the
PCRA time-bar. Id. at 329, 737 A.2d at 222.
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Commonwealth v. Ali, 86 A.3d 173, 176-177 (Pa. 2014), cert. denied,
135 S.Ct. 707 (2014).
The three statutory exceptions to the timeliness
provisions in the PCRA allow for very limited
circumstances under which the late filing of a
petition will be excused. 42 Pa.C.S.A. § 9545(b)(1).
To invoke an exception, a petition must allege and
prove:
(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.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). “As such, when a
PCRA petition is not filed within one year of the
expiration of direct review, or not eligible for one of
the three limited exceptions, or entitled to one of the
exceptions, but not filed within 60 days of the date
that the claim could have been first brought, the trial
court has no power to address the substantive merits
of a petitioner’s PCRA claims.” Commonwealth v.
Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783
(2000); 42 Pa.C.S.A. § 9545(b)(2).
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Monaco, 996 A.2d at 1079-1080.
Here, the Pennsylvania Supreme Court denied appellant’s petition for
allowance of appeal on July 27, 2006. Appellant’s judgment of sentence
became final on October 26, 2006, after his opportunity to seek review with
the United States Supreme Court ended. See U.S. Sup.Ct. Rule 13,
28 U.S.C.A. In order to timely file a PCRA petition, appellant had to file the
petition within one year of October 26, 2006. The current petition was not
filed until June 21, 2016, which was clearly untimely. In order for the PCRA
court to properly consider the current petition, appellant must establish that
the petition meets one of the three exceptions to the one-year timeliness
requirement.
Appellant does not argue that he meets one of the exceptions. Even
legality of sentencing claims are subject to the PCRA’s time of filing
restrictions. See Commonwealth v. Fahy, 959 A.2d 312 (Pa. 2008).
Instead, appellant argues that because the sentencing court failed to issue
an official sentencing order and instead issued a “sentencing sheet” that
there was no final judgment so that the time constraints of the PCRA do not
apply. However, this court has reviewed the “sentencing sheet.” There are
three with one for each conviction. The sentencing judge signed all three
and indicated the length of the sentence and whether a sentence was
concurrent to another. It appears that these sheets constitute sentencing
orders. Even if they do not, this court has held that the criminal docket and
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the transcript of the sentencing hearing are sufficient to confirm the
imposition of a prisoner’s sentence even if no sentencing order was
produced. See Joseph v. Glunt, 96 A.3d 365 (Pa.Super. 2014). Appellant
does not assert that the docket entries and sentencing transcript do not
confirm his sentence.
To the extent appellant argues that he can seek habeas corpus relief
outside the PCRA, the trial court correctly stated that proceeding under the
PCRA is the sole means of pursuing collateral relief and “encompasses all
other common law and statutory remedies for the same purpose that exist
when this subchapter takes effect, including habeas corpus and coram
nobis.” 42 Pa.C.S.A. § 9542. In Commonwealth v. Taylor, 65 A.3d 462,
465-466 (Pa.Super. 2013), this court stated that unless the PCRA fails to
provide for a potential remedy, the PCRA subsumes the writ of habeas
corpus. There is no indication here that the PCRA did not provide a remedy
for appellant’s claim.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2017
-8-
Com. v. Ortiz, I.
Combined Opinion