J-S38030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

ALBERT DURAN, III

                         Appellant                  No. 190 MDA 2015


           Appeal from the PCRA Order entered January 5, 2015
               In the Court of Common Pleas of York County
             Criminal Division at No: CP-67-CR-0000931-2006


BEFORE: WECHT, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                    FILED SEPTEMBER 09, 2015

      Appellant, Albert Duran, III, appeals from the January 5, 2015 order of

the Court of Common Pleas of York County denying relief under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46.     Upon review, we

affirm.

      The trial court summarized the relevant background as follows:

      Appellant was convicted by a jury of possession of a controlled
      substance, possession of a small amount of marijuana, two
      counts of possession with intent to deliver a controlled
      substance, criminal conspiracy to possess a controlled substance
      with intent to deliver, possession of an instrument of crime, and
      receiving stolen property. As a result, Appellant was sentenced
      on July 17, 2006 to a term of 11½ to 23 years confinement.

      Following reinstatement of Appellant’s direct appeal rights, the
      Superior Court affirmed the judgment of sentence on May 12,
      2009. Appellant filed the instant PCRA [p]etition on December
      31, 2014—more than five (5) years after the judgment of
      sentence became final in 2009.
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Trial Court Opinion, 3/4/15, at 1-2 (citations omitted).

        The PCRA court denied Appellant’s PCRA petition on January 5, 2015

as untimely. This appeal followed.

        On appeal, Appellant raises several issues, which we can summarize in

two claims. First, Appellant claims that his sentence is illegal under Alleyne

v. United States, 133 S. Ct. 2151 (2013) (a jury must find beyond a

reasonable doubt any fact triggering a mandatory minimum sentence).

Second,       Appellant   claims     the    PCRA   is   unconstitutional     because    it

impermissibly abrogated the writ of habeas corpus.                   We conclude that

Appellant is not entitled to relief on his claims.

        “Our standard of review regarding a PCRA court’s order is whether the

determination of the PCRA court is supported by the evidence of record and

is free of legal error. The PCRA court’s findings will not be disturbed unless

there    is    no   support    for    the    findings    in   the     certified   record.”

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)

(quotation marks and citations omitted).

        Before we can entertain the merits of the claims, we must first

determine whether this matter is properly before us.                The instant petition,

which Appellant filed approximately five years after his judgment of

sentence became final, ordinarily would be deemed untimely. Indeed,

        [i]t is well settled that [a]ny and all PCRA petitions must be filed
        within one year of the date on which the petitioner’s judgment
        became final, unless one of three statutory exceptions applies.

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J-S38030-15


      A judgment 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 at the
      expiration of time for seeking the review.      42 Pa.C.S.A.
      § 9545(b)(3).

Id. at 1061–62 (internal footnote and quotation marks omitted).

      Here, Appellant’s sentence became final on June 12, 2009, upon

expiration of the time for seeking discretionary review, and Appellant had

one year from that date to file his PCRA petition, i.e., June 12, 2010. As

noted, he filed his petition on December 31, 2014, over four years after the

deadline. The petition is, therefore, untimely. See, e.g., Commonwealth

v. Hutchins, 760 A.2d 50, 54 (Pa. Super. 2000). Thus, unless one of the

exceptions to the PCRA’s timeliness requirements applies, we cannot review

the merits of Appellant’s claims. Id. at 53.

      The exceptions to the PCRA’s timeliness requirements are set forth in

42 Pa.C.S.A. § 9545, which, in relevant part, provides as follows:

      (b) Time for filing petition.—

      (1) Any petition under this subchapter, including a second or
      subsequent petition, shall be filed within one year of the date the
      judgment becomes final, unless the petition alleges and the
      petitioner proves that:

         (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

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J-S38030-15



           (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 provided
           in this section and has been held by that court to apply
           retroactively.

        (2) Any petition invoking an exception provided in paragraph (1)
        shall be filed within 60 days of the date the claim could have
        been presented.

42 Pa.C.S.A. § 9545(b)(1) and (2).

        According to Appellant, Alleyne created a new constitutional right.

Thus, Appellant believes, his Alleyne-based claim is timely under Section 42

Pa.C.S.A. § 9545(b)(1)(iii).           On the merits, Appellant believes that

imposition of the mandatory minimum sentence under section 42 Pa.C.S.A.

§ 9712.11 is unconstitutional under Alleyne. We disagree.


____________________________________________


1
    Section 9712.1 provided, in relevant part:

        (a) Mandatory sentence.--Any person who is convicted of
        [violating 35 P.S. § 780-113(a)(30)] when at the time of the
        offense the person or the person’s accomplice is in physical
        possession or control of a firearm, whether visible, concealed
        about the person or the person’s accomplice or within the actor’s
        or accomplice’s reach or in close proximity to the controlled
        substance, shall likewise be sentenced to a minimum sentence of
        at least five years of total confinement.

        (c) Proof at sentencing.--Provisions of this section shall not be
        an element of the crime, and notice thereof to the defendant
        shall not be required prior to conviction, but reasonable notice of
        the Commonwealth’s intention to proceed under this section
        shall be provided after conviction and before sentencing. The
        applicability of this section shall be determined at sentencing.
        The court shall consider any evidence presented at trial and shall
(Footnote Continued Next Page)


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J-S38030-15


      Appellant’s case was at the collateral stage when Alleyne was decided

(June 23, 2013), and Alleyne does not apply retroactively to cases on

collateral review. Commonwealth v. Riggle, 2015 PA Super 147, 2015 Pa.

Super. LEXIS 399, at *15-16 (filed July 7, 2015); accord Commonwealth

v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (Alleyne did not trigger the

newly-retroactive-constitutional-right exception to the PCRA’s time bar);

United States v. Winkelman, 746 F.3d 134, 136 (3d Cir. 2014) (“[W]e

now hold that Alleyne cannot be applied retroactively to cases on collateral

review.”).   Alleyne is retroactive only to cases that were still on direct

review when it was decided—June 23, 2013. Because Appellant’s case was

no longer on direct review when Alleyne was decided, he is not entitled to

relief under Alleyne.2

                       _______________________
(Footnote Continued)

      afford the Commonwealth and the defendant an opportunity to
      present any necessary additional evidence and shall determine,
      by a preponderance of the evidence, if this section is applicable.



42 Pa.C.S.A. § 9712.1(a) and (c) (other subsections omitted).            In
Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc), we
held that § 9712.1(c) violates Alleyne. We further held that subsection (c)
could not be severed from the remainder of § 9712.1, making the statute
unconstitutional in toto. Applying similar logic, our Supreme Court recently
held unconstitutional 18 Pa.C.S.A. § 6317, which has the same language as
42 Pa.C.S.A. § 9712.1(c). See Commonwealth v. Hopkins, 117 A.3d 247
(Pa. 2015).
2
 Even if we were to conclude that Alleyne applies here, the instant petition
would nonetheless be untimely because Appellant failed to file his instant
petition within 60 days of the issuance of Alleyne. See 42 Pa.C.S.A.
(Footnote Continued Next Page)


                                            -5-
J-S38030-15


        Appellant next argues the PCRA is unconstitutional because it

impermissibly abrogated the remedy of habeas corpus, a remedy specifically

provided for in the Pennsylvania Constitution. This claim is meritless.

        First, Appellant provides no authority for this claim. As such, the claim

is waived. See Pa.R.A.P. 2119(a). Second, the PCRA has not abrogated the

remedy of habeas corpus. In fact, the PCRA subsumes the writ of habeas

corpus, and habeas corpus provides an independent basis for relief in those

cases    when    there       is    no     remedy    under   the   PCRA.     See,    e.g.,

Commonwealth            v.        Fahy,    737     A.2d   214,    223-24   (Pa.    1999);

Commonwealth v. Peterkin, 722 A.2d 638, 639-41 (Pa. 1998).

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2015




                       _______________________
(Footnote Continued)

§ 9545(b)(2). As noted, Appellant filed his petition on December 31, 2014,
556 days after the publication of Alleyne (June 23, 2013).



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