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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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