J-S61045-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
            v.                            :
                                          :
BERIS JOSE CABRERA,                       :
                                          :
                  Appellant               :           No. 504 WDA 2016

                  Appeal from the PCRA Order March 16, 2016
               in the Court of Common Pleas of Fayette County,
              Criminal Division, No(s): CP-26-CR-0001278-2000

BEFORE: PANELLA, LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED AUGUST 31, 2016

      Beris Jose Cabrera (“Cabrera”) appeals, pro se, from the Order

dismissing his third Petition for relief filed pursuant to the Post Conviction

Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      In February 2001, a jury found Cabrera guilty of corrupt organizations,

possession with intent to deliver a controlled substance, and criminal

conspiracy. The trial court sentenced Cabrera to 30 to 60 years in prison.

This Court affirmed the judgment of sentence, and the Pennsylvania

Supreme Court denied allowance of appeal.          See Commonwealth v.

Cabrera, 790 A.2d 336 (Pa. Super. 2001) (unpublished memorandum),

appeal denied, 796 A.2d 978 (Pa. 2002).       Cabrera subsequently filed two

PCRA Petitions, both of which were denied.

      On February 18, 2016, Cabrera filed the instant PCRA Petition, his

third. The PCRA Court entered a Pa.R.Crim.P. 907 Notice. Thereafter, the
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PCRA court dismissed Cabrera’s Petition.     Cabrera filed a timely Notice of

Appeal.

      On appeal, Cabrera raises the following question for our review:

      Whether the [PCRA c]ourt erred in finding [Cabrera’s] PCRA
      [Petition] untimely where the United States Supreme Court[,] in
      Montgomery v. Louisiana[, 136 S. Ct. 718 (2016),] held that
      any cases out of their Court that were substantive in nature were
      retroactively applicable to all the [s]tates[,] and in doing so[,]
      caused Alleyne v. [United States, 133 S. Ct. 2151 (2013),] to
      become retroactively applicable to [Cabrera,] whose sentence
      was unconstitutionally enhanced in violation of Alleyne[?]

Brief for Appellant at vi.

             We review an order dismissing a petition under the PCRA
      in the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court
      and the evidence of record. We will not disturb a PCRA court’s
      ruling if it is supported by evidence of record and is free of legal
      error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      Under the PCRA, a defendant must file any PCRA petition within one

year of the date that the judgment becomes final.                42 Pa.C.S.A.

§ 9545(b)(1). A judgment of sentence 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 the expiration of

time for seeking review.”      Id. § 9545(b)(3).       The PCRA’s timeliness

requirements are jurisdictional in nature, and a court may not address the

merits of the issues raised if the PCRA petition was not timely filed.

Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

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      Cabrera’s judgment of sentence became final in 2002, after the time to

seek review with the United States Supreme Court expired.                See

Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super. 2007). Cabrera

had until 2003 to file a timely PCRA petition. Thus, Cabrera’s February 2016

PCRA Petition is facially untimely.

      However, in the event that a PCRA petition is not filed within the one-

year time limitation, the PCRA provides three timeliness exceptions: (1) the

failure to raise the claim was the result of government interference; (2) the

facts of the new claim were unknown to the petitioner and could not have

been discovered with due diligence; or (3) the right asserted is a

constitutional right recognized by the United States Supreme Court or the

Pennsylvania Supreme Court after the time period provided in the section

and has been held to apply retroactively. 42 Pa.C.S.A. § 9545(b)(1)(i-iii).

Any PCRA petition invoking one of these exceptions shall be filed within sixty

days of the date the claim could have been presented. Id. § 9545(b)(2).

      Here, Cabrera invokes the newly recognized constitutional right

exception based on the Alleyne decision. See Brief for Appellant at 1-3. In

Alleyne, the Supreme Court held that any fact that increases the sentence

for a given crime must be submitted to the jury and found beyond a

reasonable doubt.     Alleyne, 133 S. Ct. at 2155.      The Supreme Court

reasoned that a Sixth Amendment violation occurs where these sentence-

determinative facts are not submitted to a jury.      Id. at 2156.    Cabrera




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argues that Alleyne applies retroactively and renders his sentence illegal.

See Brief for Appellant at 1-3.

      Here, Cabrera filed the instant PCRA Petition on February 18, 2016,

well over sixty days after June 17, 2013, the date that Alleyne was decided.

See 42 Pa.C.S.A. § 9545(b)(2); see also Boyd, 923 A.2d at 517 (stating

that “[w]ith regard to an after-recognized constitutional right, this Court has

held that the sixty-day period begins to run upon the date of the underlying

judicial decision.”).

      Further, the rule established in Alleyne does not apply retroactively

where, as here, the judgment of sentence is final. See Commonwealth v.

Washington, 2016 Pa.LEXIS 1536, *8 (Pa. 2016) (stating that “Alleyne

does not apply retroactively to cases pending on collateral review[.]”); see

also Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014)

(stating that “neither our Supreme Court, nor the United States Supreme

Court has held that Alleyne is to be applied retroactively to cases in which

the judgment of sentence had become final.”).1 Cabrera failed to meet the

requirements of the newly recognized constitutional right exception. Thus,

the PCRA court properly dismissed Cabrera’s third PCRA Petition.

      Order affirmed.

1
   In support of his argument that Alleyne applies retroactively, Cabrera
cites Montgomery, supra. In Montgomery, the United States Supreme
Court held that Miller v. Alabama, 132 S. Ct. 2455 (2012), applies
retroactively to juveniles, who were under the age of eighteen at the time of
the commission of the crime, sentenced to mandatory life sentences without
the possibility of parole. Montgomery, 136 S. Ct. at 736. However, unlike
Miller, Alleyne does not apply retroactively. See Washington, supra.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/31/2016




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