Commonwealth of Pa. v. Ortiz

• Decision Date: 18 March 2011
• Citation: 17 A.3d 417,2011 PA Super 56
• Parties: COMMONWEALTH of Pennsylvania, Appelleev.Manuel ORTIZ, Appellant.
• Court: Pennsylvania Superior Court

17 A.3d 417
2011 PA Super 56

COMMONWEALTH of Pennsylvania, Appellee
v.
Manuel ORTIZ, Appellant.

Superior Court of Pennsylvania.

Submitted Feb. 7, 2011.Filed March 18, 2011.

[17 A.3d 418]

Manuel Ortiz, appellant, pro se.Craig W. Stedman, Assistant District Attorney, Lancaster, for Commonwealth, appellee.BEFORE: STEVENS, P.J., ALLEN, J. and McEWEN, P.J.E.OPINION BY STEVENS, P.J.:

Appellant, Manuel Ortiz, appeals pro se from the Order entered on August 5, 2010 dismissing his fourth petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541–46, on the basis it was untimely filed. We affirm.

The PCRA court has aptly set forth the underlying facts as follows:

On the afternoon of October 26, 1994, [Appellant] left school and walked to the corner of Howard and Shippen Streets in the City of Lancaster where he planned to sell drugs and hang out with his friends. [Appellant] met with Levar Jones, a friend and classmate, and the two discussed plans to travel to Chicago to visit a relative of Jones. However, Jones did not have enough money to pay for the train ticket. To obtain the money for the train ticket, [Appellant] suggested buying an eight ball of crack cocaine to resell. Jones then told [Appellant] that he planned to rob a taxicab driver to obtain the money for the ticket. [Appellant] agreed to get a taxicab with Jones and the two got into a taxicab driven by Brian Whetts. They

[17 A.3d 419]

asked to be taken to an area near The Steakout restaurant on Queen Street in Lancaster where [Appellant] knew he could purchase crack cocaine. As [Appellant] and Jones exited the taxicab, Whetts was fatally shot in the back with [Appellant's] gun. [Appellant] and Jones fled from the scene to the home of Angela Nolley. While there, [Appellant] and Jones discussed the shooting with Nolley in great detail. Nolley testified that after hearing that Whetts had died, [Appellant] and Jones celebrated their achievement. [Appellant] and Jones were apprehended later that evening. [Appellant] was charged with second degree murder, criminal conspiracy, and robbery. At the time of the murder, [Appellant] was sixteen years of age.

PCRA Court Opinion filed 10/15/10 at 1–2 (citations to record omitted).

After a four day trial, on July 17, 1995, a jury found Appellant guilty of second degree murder, criminal conspiracy, and robbery, and the court sentenced Appellant to life in prison without the possibility of parole for the charge of second degree murder. Appellant filed a direct appeal to this Court contending the trial court erred in refusing to permit Appellant to meet with his defense counsel over a weekend during trial. Finding Appellant's sole issue to be waived, this Court affirmed Appellant's judgment of sentence on March 25, 1996. See Commonwealth v. Ortiz, 2944 PHILADELPHIA 1995, 451 Pa.Super. 601, 678 A.2d 832 (Pa.Super. filed 3/25/96) (unpublished memorandum). Appellant did not file a petition for allowance of appeal with the Pennsylvania Supreme Court.

On January 8, 1997, Appellant filed a pro se PCRA petition, and counsel was appointed to represent him. Counsel filed an amended PCRA petition, and following a hearing, by Order and Opinion entered on October 31, 1997, the PCRA court denied Appellant's PCRA petition. Appellant filed an appeal to this Court contending trial counsel was ineffective in failing to object to the trial court's order precluding Appellant from meeting with his attorney during a weekend recess. Finding no prejudice to counsel's omission, this Court affirmed the denial of post-conviction relief. See Commonwealth v. Ortiz, 4802 PHILADELPHIA 1997 (Pa.Super. filed 5/27/98) (unpublished memorandum). Thereafter, the Pennsylvania Supreme Court denied Appellant's petition for allowance of appeal.

On June 14, 2001, Appellant filed his second pro se PCRA petition, and pursuant to Pa.R.Crim.P. 907, the PCRA court gave notice of its intention to dismiss Appellant's PCRA petition without a hearing. Appellant filed a response, and by Order entered on July 10, 2001, the PCRA court dismissed Appellant's PCRA petition. Appellant filed an appeal to this Court, and finding Appellant's second PCRA petition to be untimely, we affirmed. See Commonwealth v. Ortiz, 1316 MDA 2001 (Pa.Super. filed 6/26/02) (unpublished memorandum).

On February 28, 2006, Appellant filed his third pro se PCRA petition, and following the court's notice of its intention to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907, by Order entered on May 11, 2006, the PCRA court dismissed Appellant's PCRA petition. Appellant filed an appeal to this Court; however, on June 23, 2006, this Court discontinued Appellant's appeal in response to his request to withdraw the appeal.

On June 7, 2010, Appellant filed his fourth pro se PCRA petition. ¹ In his petition,

[17 A.3d 420]

Appellant acknowledged his fourth PCRA petition was facially untimely; however, he averred that he was entitled to 42 Pa.C.S.A. § 9545(b)(1)(iii)'s after-recognized constitutional right exception to the PCRA time limitation in light of the United States Supreme Court's recent Opinion in Graham v. Florida, ––– U.S. ––––, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). On June 23, 2010, the PCRA court provided Appellant with notice of its intention to dismiss without a hearing pursuant to Pa.R.Crim.P. 907. Appellant filed a response, and by Order filed on August 5, 2010, the PCRA court dismissed Appellant's fourth pro se PCRA petition. On August 20, 2010, Appellant filed a notice of appeal to this Court. All Pa.R.A.P. 1925 requirements have been met.

This Court's standard of review regarding an order dismissing a petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Halley, 582 Pa. 164, 169 n. 2, 870 A.2d 795, 799 n. 2 (2005). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.Super.2001). Moreover, a PCRA court may decline to hold a hearing on the petition if the PCRA court determines that petitioner's claim is patently frivolous and is without a trace of support in either the record or from other...