J-S24013-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
             v.                           :
                                          :
ROMMELL DOMINGUEZ-CRUZ,                   :
                                          :
                   Appellant              :           No. 1478 MDA 2015

                Appeal from the Order entered August 5, 2015
                in the Court of Common Pleas of Berks County,
              Criminal Division, No(s): CP-06-CR-0002122-2007

BEFORE: GANTMAN, P.J., BOWES and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                          FILED APRIL 29, 2016

        Rommell Dominguez-Cruz (“Dominguez-Cruz”) appeals from the Order

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

Relief Act (“PCRA”).1 See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        In September 2009, Dominguez-Cruz pled guilty to two counts of

corrupt organizations, and one count each of criminal conspiracy to possess

with intent to deliver a controlled substance and possession with intent to

deliver a controlled substance.2 The trial court sentenced Dominguez-Cruz




1
   Although Dominguez-Cruz characterizes his Petition as one seeking
“Habeas Corpus Relief Under … the Pennsylvania Constitution,” the PCRA
court properly construed his filing as a PCRA Petition because the underlying
claims are encompassed by the PCRA. See 42 Pa.C.S.A. § 9542 (stating
that the PCRA is “the sole means of obtaining collateral relief and
encompasses all other common law and statutory remedies … including
habeas corpus….”).
2
    18 Pa.C.S.A. §§ 911, 903; 35 P.S. § 780-113(a)(30).
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to 7 years, 10½ months to 16 years in prison. Dominguez-Cruz did not file

a direct appeal.

      In November 2014, Dominguez-Cruz, pro se, filed his first PCRA

Petition.   The PCRA court appointed Dominguez-Cruz PCRA counsel, who

subsequently filed a no-merit letter and a Petition for Permission to

Withdraw as Counsel pursuant to Commonwealth v. Turner, 544 A.2d 927

(Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.

1988) (en banc).     The PCRA court granted the Petition for Permission to

Withdraw, and issued a Pa.R.Crim.P. 907 Notice of Intent to Dismiss.

Dominguez-Cruz filed a response, and the PCRA court thereafter dismissed

the PCRA Petition. Dominguez-Cruz did not file an appeal.

      In July 2015, Dominguez-Cruz, pro se, filed the instant PCRA Petition.

After issuing a Rule 907 Notice, the PCRA court dismissed the Petition as

untimely filed. Dominguez-Cruz 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).




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      Under the PCRA, any PCRA petition “including a second or subsequent

petition, shall be filed within one year of the date the judgment becomes

final[.]”   See 42 Pa.C.S.A. § 9545(b)(1) (emphasis added).             Here,

Dominguez-Cruz’s judgment of sentence became final in October 2009,

when the time for seeking direct review expired.             See 42 Pa.C.S.A.

§ 9545(b)(3); see also Pa.R.A.P. 903(a). Thus, Dominguez-Cruz had until

October 2010 to file a Petition for relief under the PCRA.            Because

Dominguez-Cruz did not file the instant PCRA Petition until July 2015, his

Petition is facially untimely.

      However, we may consider an untimely PCRA petition if the petitioner

can plead and prove one of three exceptions set forth under 42 Pa.C.S.A.

§ 9545(b)(1)(i-iii). Any petition invoking one of these exceptions “shall be

filed within 60 days of the date the claim could have been presented.” Id.

§ 9545(b)(2); Commonwealth v. Albrecht, 994 A.2d 1091, 1094 (Pa.

2010).

      Here, Dominguez-Cruz attempts to invoke the newly recognized

constitutional right exception at 42 Pa.C.S.A. § 9545(b)(1)(iii) by arguing

that the United States Supreme Court’s decision in Alleyne v. United

States, 133 S. Ct. 2151 (2013), should be applied retroactively, and

therefore affords him relief. Brief for Appellant at 7-17.

      Initially, Dominguez-Cruz did not file the instant PCRA Petition within

sixty days of the date the Alleyne decision was filed, as required under the



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PCRA. See 42 Pa.C.S.A. § 9545(b)(2). Moreover, this Court has held that

the Alleyne decision is not a sufficient basis to invoke the exception at

Section 9545(b)(1)(iii), as the decision does not apply retroactively.   See

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

that “[e]ven assuming that Alleyne did announce a new constitutional right,

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 has become final. This is fatal to [a]ppellant’s argument regarding

the PCRA time-bar.”); see also Commonwealth v. Riggle, 119 A.3d 1058,

1067 (Pa. Super. 2015).    Thus, the PCRA court did not err in dismissing

Dominguez-Cruz’s Petition as untimely.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/29/2016




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