J-S07033-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
            v.                            :
                                          :
MIGUEL ANGEL RUIZ,                        :
                                          :
                   Appellant              :           No. 1276 MDA 2016

                   Appeal from the PCRA Order June 21, 2016
              in the Court of Common Pleas of Lancaster County,
               Criminal Division, No(s): CP-36-CR-0003468-1991

BEFORE: BOWES, LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                          FILED APRIL 13, 2017

      Miguel Angel Ruiz (“Ruiz”) appeals, pro se, from the Order dismissing

his fourth Petition for relief filed pursuant to the Post Conviction Relief Act

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

      In September 1991, Ruiz killed a car dealer during a test drive. On

June 23, 1992, Ruiz entered into a negotiated guilty plea to one count each

of murder of the first degree, robbery, and criminal conspiracy in exchange

for the Commonwealth not seeking the death penalty. That same day, the

trial court imposed an aggregate sentence of life in prison. Ruiz did not file

a direct appeal.

      Ruiz previously filed three PCRA Petitions, all of which were denied or

dismissed. On May 16, 2016, Ruiz filed the instant PCRA Petition. The PCRA

court issued a Pennsylvania Rule of Criminal Procedure 907 Notice.        Ruiz

filed a pro se Response.       Thereafter, the PCRA court dismissed Ruiz’s
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Petition.   Ruiz filed a timely Notice of Appeal and a court-ordered

Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement.

             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).

      Initially, under the PCRA, any petition “including a second or

subsequent petition, shall be filled within one year of the date the judgment

becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1) (emphasis added). A judgment

of sentence becomes final “at the conclusion of direct review, including

discretionary review in the Supreme Court of Pennsylvania, or at the

expiration of time for seeking the 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).

      Here, Ruiz’s Petition is facially untimely under the PCRA.        See 42

Pa.C.S.A. § 9545(b).      However, Pennsylvania courts may consider an

untimely petition if the appellant can explicitly plead and prove one of three

exceptions set forth at 42 Pa.C.S.A. § 9545(b)(1)(i)–(iii). Any PCRA petition

invoking one of these exceptions “shall be filed within 60 days of the date




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the claim could have been presented.” Id. § 9545(b); Albrecht, 994 A.2d

at 1094.

      Here, Ruiz invokes the newly-recognized constitutional right exception

based on Alleyne v. United States, 133 S. Ct. 2151 (2013). See Brief for

Appellant at 4-18.1 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. Ruiz argues that because Alleyne renders his sentence illegal, there

is no need to determine whether Alleyne applies retroactively. See Brief for

Appellant at 5-6, 7, 13, 15-17, 18.

      Initially, based upon our review of the written sentencing Order and

the sentencing hearing transcript, the trial court did not impose a mandatory

minimum sentence. However, even if the trial court had imposed a

mandatory minimum sentence, Ruiz’s May 16, 2016 PCRA Petition was filed

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

1
  Ruiz cites to various cases from this Court and the Supreme Court of
Pennsylvania that held that mandatory minimum sentencing statutes to be
unconstitutional based upon the reasoning in Alleyne. See, e.g., Brief for
Appellant at 4-5, 6, 7-13, 18. However, the rulings in those cases are based
solely upon Alleyne, and the Courts did not state that those rulings apply
retroactively. See Commonwealth v. Miller, 102 A.3d 988, 995 (Pa.
Super. 2014) (recognizing that “a new rule of constitutional law is applied
retroactively to cases on collateral review only if the United States Supreme
Court or our Supreme Court specifically holds it to be retroactively applicable
to those cases.”).


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See 42 Pa.C.S.A. § 9545(b)(2); see also Commonwealth v. Boyd, 923

A.2d 513, 517 (Pa. Super. 2007) (stating that “[w]ith regard to [a newly]-

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, 142 A.3d 810, 820 (Pa. 2016) (holding that “Alleyne does

not apply retroactively to cases pending on collateral review.”); see also

Miller, 102 A.3d at 995 (stating that while Alleyne claims go to the legality

of the sentence, a court cannot review a legality claim where it does not

have jurisdiction).     Ruiz failed to meet the requirements of the newly-

recognized constitutional right exception.    Thus, the PCRA court properly

dismissed Ruiz’s fourth PCRA Petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/13/2017




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