J-S22021-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

LEANDRO ORTIZ-LUGO

Appellant No. 1225 MDA 2016

Appeal from the PCRA Order June 14, 2016

In the Court of Common Pleas of Adams County

Criminal Division at No(s): CP-01-CR-0000178-2003

BEFORE: SHOGAN, J., MOULTON, J., and PLATT, J.*

MEMORANDUM BY MOULTON, J.: FILED SEPTEMBER 11, 2017

Leandro Ortiz-Lugo appeals, pro se, from the June 14, 2016 order 

entered in the Adams County Court of Common Pleas dismissing as untimely 

his second petition filed under the Post Conviction Relief Act (“PCRA”), 42 

Pa.C.S. §§ 9541-46. We affirm.

Ortiz-Lugo initially pled nolo contendere to first-degree murder on 

August 1, 2003, and the trial court sentenced him to life imprisonment. 

Following a PCRA petition alleging ineffective assistance of counsel, the trial 

court vacated Ortiz-Lugo’s judgment of sentence on September 22, 2006. 

On October 10, 2008, a jury convicted Ortiz-Lugo of first-degree murder and 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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possessing instruments of crime (“PIC”).1 That same day, the trial court 

sentenced Ortiz-Lugo to life imprisonment for the first-degree murder 

conviction and a consecutive 60 days to 5 years’ incarceration for the PIC 

conviction. Ortiz-Lugo filed post-sentence motions, which the trial court 

denied. On October 30, 2009, this Court affirmed his judgment of 

sentence.2 On July 29, 2010, Ortiz-Lugo petitioned for allowance of appeal, 

which the Pennsylvania Supreme Court denied.

On June 7, 2013, Ortiz-Lugo filed a motion seeking to withdraw 

counsel.3 The trial court entered an order treating Ortiz-Lugo’s motion as 

his first PCRA petition and appointing counsel. On September 24, 2013, the 

trial court dismissed Ortiz-Lugo’s PCRA petition for “fail[ing] to set forth any 

basis for P.C.R.A. relief or any indication that the Petition was timely filed.”4 

Order, 9/24/13.

____________________________________________

1 18 Pa.C.S. §§ 2502(a) and 907(a), respectively.

2 The certified record does not reflect that appellate counsel requested 

either the trial or sentencing transcripts in this case. Ortiz-Lugo was 

represented by the same attorney during trial and on direct appeal.

3 On April 29, 2013, Ortiz-Lugo filed an identical motion to withdraw 

counsel in which he claimed that: he had unsuccessfully attempted to 

contact his attorney, counsel was avoiding him, and counsel was not 

updating Ortiz-Lugo on his case. The trial court denied the motion as moot 

in light of the Supreme Court’s denial of Ortiz-Lugo’s petition for allowance 

of appeal. 

4 A review of the certified record shows that appointed counsel never 

filed an amended PCRA petition or a motion to withdraw as counsel pursuant 

to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and 

(Footnote Continued Next Page)
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On November 4, 2015, Ortiz-Lugo requested pro se a copy of the 

docket entries in his case. On November 30, 2015, he also filed a motion 

with the PCRA court seeking a copy of the file in his case, including the trial 

and sentencing transcripts.5 On January 5, 2016, the PCRA court denied 

Ortiz-Lugo’s motion, stating that there was no litigation pending. 

On January 14, 2016, Ortiz-Lugo filed a pro se PCRA petition, his 

second, alleging ineffectiveness both of direct appeal and PCRA counsel and 

requesting copies of transcripts. On February 23, 2016, the PCRA court sent 

Ortiz-Lugo notice of its intent to dismiss the petition, to which Ortiz-Lugo 

responded. On June 14, 2016, the PCRA court dismissed Ortiz-Lugo’s 

petition as untimely without a hearing. Ortiz-Lugo timely appealed.6 

On appeal, Ortiz-Lugo raises the following issues:

(Footnote Continued) _______________________

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). The 

record reflects that the trial court dismissed the petition without any inquiry 

into why counsel had taken no action.

5 On December 2, 2015, the deputy clerk of courts notified Ortiz-Lugo 

that there was a $20.00 filing fee. On December 14, 2015, Ortiz-Lugo 

requested waiver of the filing fee because he did not have the funds to pay 

and had been granted in forma pauperis status several times over the past 

12 years. On December 15, 2015, the deputy clerk of courts explained that 

Ortiz-Lugo had to pay the fee because he had not been granted in forma 

pauperis status since 2013. On January 7, 2016, Ortiz-Lugo filed a petition 

seeking in forma pauperis status, which the trial court denied as moot on 

January 21, 2016.

6 On September 26, 2016, after Ortiz-Lugo filed his notice of appeal, 

he filed a “motion for order to direct the lower court to provide court records 

and transcripts.” On October 13, 2016, this Court entered an order 

deferring disposition of Ortiz-Lugo’s application for relief to this panel.
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I. The PCRA Court erred when it failed to grant [OrtizLugo]’s request for court documents from the Clerk of 

Courts and for failing to provide him a copy of his 

transcripts from [Ortiz-Lugo]’s Trial and 10/10/08 

Sentencing Proceedings.

II. The PCRA Court erred when it ruled on [6/14]/16 that 

it lacks jurisdiction to entertain the PCRA Petition and 

that the record indicates that [Ortiz-Lugo]’s petition is 

not timely filed based on the discovery of unknown 

facts.

Ortiz-Lugo’s Br. at 4.7

Our review of an order denying PCRA relief is limited to determining 

“whether the decision of the PCRA court is supported by the evidence of 

record and is free of legal error.” Commonwealth v. Melendez–Negron, 

123 A.3d 1087, 1090 (Pa.Super. 2015). We will not disturb the PCRA court’s 

factual findings “unless there is no support for [those] findings in the 

certified record.” Id. 

It is well-settled that “the timeliness of a PCRA petition is a 

jurisdictional requisite.” Commonwealth v. Brown, 111 A.3d 171, 175 

(Pa.Super.), app. denied, 125 A.3d 1197 (Pa. 2015). A PCRA petition, 

“including a second or subsequent petition, shall be filed within one year of 

the date the judgment becomes final.” 42 Pa.C.S. § 9545(b)(1). A 

judgment is final “at the conclusion of direct review, including discretionary 

review in the Supreme Court of the United States and the Supreme Court of 

____________________________________________

7 We review Ortiz-Lugo’s claims out of order for ease of disposition.
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Pennsylvania, or at the expiration of time for seeking [such] review.” 42 

Pa.C.S. § 9545(b)(3).

This Court affirmed Ortiz-Lugo’s judgment of sentence on October 30, 

2009. On July 29, 2010, the Pennsylvania Supreme Court denied OrtizLugo’s petition for allowance of appeal. Ortiz-Lugo did not file a petition for 

writ of certiorari with the United States Supreme Court and, therefore, his 

judgment of sentence became final on October 27, 2010.8 He had one year 

from that date, or until October 27, 2011, to file a timely PCRA petition. His 

current petition, filed on January 14, 2016, is therefore facially untimely.

Courts may consider a PCRA petition filed more than one year after a 

judgment of sentence became final only if the petitioner alleges and proves 

one of the following three statutory exceptions:

(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 

____________________________________________

8 Ortiz-Lugo had 90 days from the date the Pennsylvania Supreme 

Court denied his petition for allowance of appeal to file a petition for writ of

certiorari with the United States Supreme Court. See U.S. S. Ct. R. 13.
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provided in this section and has been held by that court to 

apply retroactively.

42 Pa.C.S. § 9545(b)(1)(i)-(iii); see Brown, 111 A.3d at 175. In addition,

when invoking an exception to the PCRA time bar, the petition must “be filed 

within 60 days of the date the claim could have been presented.” 42 Pa.C.S. 

§ 9545(b)(2).

Ortiz-Lugo attempts to raise the new-facts exception to the one-year 

time bar. He claims that this Court sent him a letter on November 5, 2015, 

notifying him that his direct appeal had been denied. He further claims it 

was “evident that no [appeal to the PCRA petition decision] was filed.” 

Ortiz-Lugo’s Br. at 19. Ortiz-Lugo argues that this constitutes abandonment 

by both trial and PCRA counsel. He contends that the November 5, 2015 

letter is a new fact and that he filed his second PCRA petition within the 60 

days of learning of this new fact. We disagree.

The PCRA court addressed Ortiz-Lugo’s claims in its Pennsylvania Rule 

of Appellate Procedure 1925(a) opinion and concluded he had not exercised 

due diligence in discovering the alleged new fact. The PCRA court found 

that: (1) on May 1, 2013, Ortiz-Lugo was served with an April 26, 2013 

order notifying him that his direct appeal rights had been exhausted; (2) on 

September 25, 2013, Ortiz-Lugo was served with the September 24, 2013 

order denying his first PCRA petition, which stated “that court appointed 

counsel will not act on his behalf unless requested by [him] to do so”; (3) 

while Ortiz-Lugo claims he wrote to the trial court and his attorney to 

ascertain the status of his appeal, he does not identify when those actions 
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were taken; (4) the record reveals that Ortiz-Lugo’s due diligence attempts 

did not begin until November 2015; (5) “he had knowledge of how to 

ascertain the status of pending litigation as he had previously done so,” yet 

chose to do nothing; (6) “he was aware that he could seek counsel’s removal 

in the event counsel was inattentive and that the Court would act upon his 

request as he had done so in the past”; and (7) “although claiming counsel 

was inattentive he sat silently for approximately 30 months.” Opinion 

Pursuant to Pa.R.A.P. 1925(a), 9/16/16, at 8, 9 (“1925(a) Op.”). We agree. 

Therefore, for the reasons set forth by the PCRA court, Ortiz-Lugo does not 

meet the new-facts exception. 

Ortiz-Lugo also claims that the trial court erred in denying his motion 

requesting court documents, including trial and sentencing transcripts.9 To 

the extent Ortiz-Lugo claims PCRA counsel’s ineffectiveness for failing to 

order the transcripts, this claim is facially untimely and, as discussed above, 

Ortiz-Lugo fails to plead a viable exception to the PCRA time bar. 

To the extent Ortiz-Lugo is appealing the order denying his request for 

transcripts, which was contained in his PCRA petition, the PCRA court found:

[Ortiz-Lugo]’s claim that the Court erred in denying 

transcripts is not a basis for relief. [Ortiz-Lugo]’s first 

request for documents did not occur until well after the 

____________________________________________

9

Insofar as Ortiz-Lugo argues that he did not receive docket entries in 

his case, this claim is belied by the record. See Ortiz-Lugo’s Ltr., 11/4/15 

(wherein Clerk of Courts notes that trial court docket sheets were sent to 

Ortiz-Lugo on November 4, 2015 at approximately 1:00 p.m.).
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jurisdictional time limits had expired. Additionally, 

pursuant to his request, [Ortiz-Lugo] was actually provided 

docket transcripts.5 The standard of review for an order 

denying a motion for production of documents is an abuse 

of discretion. See Commonwealth v. Ballem, 482 A.2d 

1322, 1324 (Pa.Super. 1984).[10] In Ballem, an inmate 

without any current pending proceedings made a 

boilerplate request for notes of testimony, docket entries, 

pre-trial motions, and other information in order to pursue 

relief under the Post Conviction Hearing Act. The Court 

held that the trial court did not abuse its discretion as the 

merits of the request were unable to be determined based 

upon the petition and absent any pending proceedings. 

[Id.] Instantly, [Ortiz-Lugo] sought “the Clerk of Courts 

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10 The Ballem Court explained that a criminal defendant had a 

“constitutional due process and equal protection” right “to be afforded copies 

of his trial transcripts” and that this right “extended to post-conviction 

proceedings as well.” 482 A.2d at 1323, 1323 n.1. In that case, we noted:

This right was formerly embodied within the Act of May, 

1907, P.L. 135 as amended, 17 P.S. § 1802. Pursuant to 

this statute, . . . the defendant was entitled to a copy of 

the notes of testimony if the same was requested within 

90 days from the date of verdict. Commonwealth v. 

Bear, . . . 423 A.2d 1045 ([Pa.Super.] 1980). After the 

90-day period, the request was granted at the discretion of 

the court.

This statute was repealed on April 28, 1978, P.L. 202 

effective June 27, 1980, pursuant to the Judiciary Act 

Repealer Act (JARA). Since then, no general rules have 

been prescribed to replace the repealed statute. In order 

to provide for this contingency, the legislature established 

that the practice and procedure under the repealed statute 

continues in full force and effect as part of the common 

law of the Commonwealth until the time that general rules 

are promulgated. 42 Pa.C.S.A. § 20003(b); 

Commonwealth v. Kelly, . . . 465 A.2d 1301, 1303-1304 

([Pa.Super.] 1983).

Id. 
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to provide defendant with a copy of its file, and the 

transcripts from the trial, and sentencing in this case.” As 

noted, the Clerk of Courts had previously provided [OrtizLugo] with the full docket information. His various 

pleadings in this matter do not set forth what claims he 

intends to pursue, how the documents are necessary in 

order to pursue such claims, or any other basis to 

determine whether there was a compelling reason to grant 

the request. Accordingly, pursuant to Ballem, this issue is 

meritless.6

5 See notation by the Clerk of Courts on 

November 4, 2015 correspondence filed of 

record.

6

[Ortiz-Lugo]’s November 30, 2015 request 

for transcripts pre-dated the filing of the 

current P.C.R.A. Petition. Production of trial 

transcripts and sentencing proceedings are 

completely unrelated to [Ortiz-Lugo]’s 

current claim of ineffectiveness based upon 

abandonment on appeal or the application 

of any exception to the statutory time 

requirements. Information relevant to 

those claims is contained in the docket 

entries, a copy of which [Ortiz-Lugo] has 

been previously provided.

1925(a) Op. at 10-11. We agree with the sound reasoning of the PCRA 

court, which did not abuse its discretion in denying Ortiz-Lugo’s request for 

transcripts. 

Order affirmed.11

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11 For the reasons stated above, Ortiz-Lugo’s September 26, 2016 

“motion for order to direct the lower court to provide court records and 

transcripts” is hereby denied.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/11/2017