Com. v. Ortiz, A.

C
J-S48022-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA       :    IN THE SUPERIOR COURT OF
                                    :          PENNSYLVANIA
                   Appellee         :
                                    :
              v.                    :
                                    :
 ANGEL GABRIEL ORTIZ                :
                                    :
                   Appellant        :       No. 1241 EDA 2020

           Appeal from the PCRA Order Entered June 3, 2020
         In the Court of Common Pleas of Northampton County
         Criminal Division at No(s): CP-48-CR-0000060-2007,
          CP-48-CR-0003401-2007, CP-48-CR-0003402-2007


  COMMONWEALTH OF PENNSYLVANIA       :   IN THE SUPERIOR COURT OF
                                     :         PENNSYLVANIA
                                     :
              v.                     :
                                     :
                                     :
  ANGEL GABRIEL ORTIZ                :
                                     :
                   Appellant         :       No. 1242 EDA 2020

            Appeal from the PCRA Order Entered June 3, 2020
          In the Court of Common Pleas of Northampton County
          Criminal Division at No(s): CP-48-CR-0000060-2007,
           CP-48-CR-0003401-2007, CP-48-CR-0003402-2007


  COMMONWEALTH OF PENNSYLVANIA       :   IN THE SUPERIOR COURT OF
                                     :         PENNSYLVANIA
                                     :
              v.                     :
                                     :
                                     :
  ANGEL GABRIEL ORTIZ                :
                                     :
                   Appellant         :       No. 1243 EDA 2020
J-S48022-20



                Appeal from the PCRA Order Entered June 3, 2020
              In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0000060-2007,
               CP-48-CR-0003401-2007, CP-48-CR-0003402-2007


BEFORE: KUNSELMAN, J., KING, J., and McCAFFERY, J.

MEMORANDUM BY KING, J.:                          FILED: FEBRUARY 22, 2021

        Appellant, Angel Gabriel Ortiz, appeals pro se from the order entered in

the Northampton County Court of Common Pleas, which dismissed as untimely

his serial petition filed under the Post Conviction Relief Act (“PCRA”). 1 We

affirm.

        The relevant facts and procedural history of this case are as follows:

           On March 27, 2009, [Appellant] was sentenced to an
           aggregate period of incarceration of 3-12 years, after
           pleading guilty under the above docket numbers.
           Specifically, in Docket No. 60-2007, [Appellant] pled guilty
           to [attempted] indecent assault of a minor under the age of
           13 and was given a standard range sentence of 16-60
           months. In Docket No. 3401-2007, [Appellant] pled guilty
           to corruption of minors and was sentenced to a standard
           range sentence of 16-60 months. In Docket … No. 3402-
           2007, [Appellant] was sentenced to 4-24 months for
           resisting arrest. The sentences were run consecutive to
           each other to achieve the aggregate sentence of 3-12 years.

           Both convictions for [the sex offenses] against minor victims
           involved different adolescent girls.

           [Appellant] filed a direct appeal which was discontinued with
           the Superior Court on June [16], 2010.

           Thereafter, [Appellant] filed his first PCRA on July 27, 2010.
           After a hearing, [the PCRA court] issued [its] order denying
____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.

                                           -2-
J-S48022-20


         PCRA relief on November 18, 2010. [Appellant] filed an
         appeal to the Superior Court. On [December 9, 2011, the]
         order denying PCRA relief was affirmed.

         [Appellant] filed a second PCRA on November 6, 2013. [The
         PCRA court] entered an order dismissing the PCRA without
         a hearing on December [2, 2013]. [Appellant] filed an
         appeal which resulted in an order entered by the Superior
         Court on [July 11], 2014, affirming [the PCRA court’s] denial
         of the second PCRA.

         [Appellant] filed his third PCRA on July 16, 2018, raising an
         ineffective assistance of counsel claim alleging that counsel
         failed to “protect” [Appellant] at sentencing. On August 2,
         2018, [the PCRA court] entered [its] order of court with
         notice of intent to dismiss without a hearing.

         Now comes [Appellant] with a fourth petition for post-
         conviction relief, this time styled as a motion for
         modification and correction of an illegal sentence, which
         [the court] recognized as a [PCRA petition]. This most
         recent petition was filed on April 20, 2020. In the body of
         the Petition, [Appellant] cites Alleyne v. United States,
         

133 S. Ct. 2151

(2013) for the bald claim that “[Appellant’s]
         factor which placed him [subject to the] sentencing statute
         of 18 Pa.C.S.A. § 3126 and [18] Pa.C.S.A. § 5104 was not
         included in the initial indictment, nor were these factors
         raised in front of a jury, or trial court, to be deliberated on
         guilt or innocence. Violating [Appellant’s] Sixth Amendment
         right to a fair trial and Fourteenth Amendment right to due
         process of the law….”

(PCRA Court Opinion, filed June 3, 2020, at 1-3) (some capitalization omitted).

      On May 12, 2020, the PCRA court issued Pa.R.Crim.P. 907 notice of its

intent to dismiss the petition without a hearing.      Appellant filed a pro se

response on May 28, 2020, but the court dismissed the petition on June 3,

2020. On June 11, 2020, Appellant timely filed pro se notices of appeal at




                                      -3-
J-S48022-20


each underlying docket number.2                The court ordered Appellant to file a

Pa.R.A.P 1925(b) concise statement of errors complained on appeal on June

12, 2020, and Appellant timely complied.

       Preliminarily, the timeliness of a PCRA petition is a jurisdictional

requisite. Commonwealth v. Zeigler, 

148 A.3d 849

(Pa.Super. 2016). A

PCRA petition shall be filed within one year of the date the underlying


____________________________________________


2 The certified record includes three separate notices of appeal, with each
notice listing the three trial court docket numbers at issue. On each notice of
appeal, a different trial court docket number is highlighted. One notice of
appeal contains Appellant’s signature, as well as a time stamp, in blue ink.
The other two notices of appeal appear to be copies of the original. On June
30, 2020, the Northampton County Clerk of Courts sent the notices of appeal
to this Court’s Prothonotary, who immediately docketed the three appeals.
This Court consolidated the appeals sua sponte on October 14, 2020, and we
did not issue a rule to show cause order for any further clarification regarding
the filing of the notices of appeal.

In its brief, the Commonwealth indicates “it would be within the Court’s
discretion to quash this matter based on Commonwealth v. Walker, 

185 A.3d 969

(Pa. 2018) … [where] Appellant filed one notice of appeal listing all
three docket numbers[.]” (Commonwealth’s Brief at 3 n.6). While it is
possible that Appellant actually filed one notice of appeal that was time-
stamped and photocopied by the clerk of courts’ office, the record is silent
regarding the exact circumstances surrounding the filings.            Compare
Commonwealth v. Creese, 

216 A.3d 1142

(Pa.Super. 2019) (quashing
appeal where appellant’s attorney admitted to filing only one notice of appeal
in violation of Walker). Absent more information, and in an abundance of
caution, we decline the Commonwealth’s invitation to quash the instant
appeal. See Commonwealth v. Johnson, 

236 A.3d 63

(Pa.Super. 2020)
(en banc) (declining to quash appeal where counsel filed separate notices of
appeal for each trial court docket number; citing other recent case law partially
overruling Creese to extent that it interpreted Walker as requiring this Court
to quash appeal where appellant files multiple notices of appeal, and each
notice lists more than one underlying trial court docket number).



                                           -4-
J-S48022-20


judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment

of sentence is 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). The statutory exceptions to the PCRA time-bar allow

for very limited circumstances under which the late filing of a petition will be

excused; a petitioner asserting a timeliness exception must also file a petition

within the required statutory window. 42 Pa.C.S.A § 9545(b)(1-2).

       Instantly, Appellant’s judgment of sentence became final in 2010 when

he discontinued his direct appeal. Appellant filed the current petition on April

20, 2020, which is patently untimely.            See 42 Pa.C.S.A. § 9545(b)(1).

Significantly, Appellant failed to plead and prove any exception to the PCRA

time-bar.3 Thus, his petition remains time-barred. Accordingly, we affirm.

       Order affirmed.




____________________________________________


3 This Court cannot review a challenge to the legality of a sentence raised in
an untimely PCRA petition. See Commonwealth v. Fowler, 

930 A.2d 586

,
592 (Pa.Super. 2007), appeal denied, 

596 Pa. 715

, 

944 A.2d 756

(2008)
(stating: “[A]lthough 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”).

                                           -5-
J-S48022-20




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/22/21




                          -6-

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