J-S45030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

JUVENTINO RAMIREZ

                            Appellant                No. 3301 EDA 2016


               Appeal from the PCRA Order September 21, 2016
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0000396-2007


BEFORE: GANTMAN, P.J., PANELLA, J., and STRASSBURGER, J.*

JUDGMENT ORDER BY PANELLA, J.                   FILED SEPTEMBER 15, 2017

        A jury convicted Appellant, Juventino Ramirez, of numerous crimes

arising from seven years of sexual assaults on a minor. On March 6, 2008,

the trial court imposed a mandatory minimum sentence, as provided for in

the contemporary 42 Pa.C.S.A. § 9718. The Supreme Court of Pennsylvania

subsequently found § 9718 to be unconstitutional pursuant to Alleyne v.

United States, 133 S.Ct. 2151 (2013). See Commonwealth v. Wolfe,

140 A.3d 651 (Pa. 2016).

        On August 19, 2016, Ramirez filed his third petition pursuant to the

Post Conviction Relief Act (“PCRA”), asserting that his mandatory sentence

was unconstitutional. The PCRA court found that this petition was untimely,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S45030-17


and that Ramirez had failed to establish the applicability of an exception to

the PCRA’s time bar. It therefore dismissed the petition. This timely pro se

appeal followed.

      This Court previously noted that Ramirez had until May 1, 2010 to file

a timely petition under the PCRA. See Commonwealth v. Ramirez, No.

2188 EDA 2013, at 7 (Pa. Super., filed May 1, 2014) (unpublished

memorandum). Clearly, the instant petition, filed on August 19, 2016, is

facially untimely. Ramirez was therefore required to plead and prove an

exception to the PCRA’s time bar. See Commonwealth v. Hernandez, 79

A.3d 649, 651 (Pa. Super. 2013).

      Ramirez argues his petition satisfies the requirements of the newly

recognized constitutional right exception enshrined in 42 Pa.C.S.A. §

9545(b)(1)(iii). Specifically, that the Supreme Court of the United States, in

Montgomery v. Louisiana, 136 S.Ct. 718 (2016), held that Alleyne is to

be applied retroactively for the benefit of petitioners on collateral review.

      Montgomery held no such thing. A federal district court recently

explained, “Alleyne is not retroactively applicable to cases on collateral

review because it is a mere extension of Apprendi [v. New Jersey, 530

U.S. 466 (2000)]….” Suggs v. Saad, 2017 WL 1862468, *7 (N.D. West

Virginia 2017) (footnote omitted) (collecting cases). And our Supreme Court

has held that “Alleyne does not apply retroactively to cases pending on




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collateral review….” Commonwealth v. Washington, 142 A.3d 810, 820

(Pa. 2016).

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/15/2017




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