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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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

____________________________________________ 

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. 

____________________________________________ 

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