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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
BERIS JOSE CABRERA, :
:
Appellant : No. 504 WDA 2016
Appeal from the PCRA Order March 16, 2016
in the Court of Common Pleas of Fayette County,
Criminal Division, No(s): CP-26-CR-0001278-2000
BEFORE: PANELLA, LAZARUS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 31, 2016
Beris Jose Cabrera (“Cabrera”) appeals, pro se, from the Order
dismissing his third Petition for relief filed pursuant to the Post Conviction
Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
In February 2001, a jury found Cabrera guilty of corrupt organizations,
possession with intent to deliver a controlled substance, and criminal
conspiracy. The trial court sentenced Cabrera to 30 to 60 years in prison.
This Court affirmed the judgment of sentence, and the Pennsylvania
Supreme Court denied allowance of appeal. See Commonwealth v.
Cabrera, 790 A.2d 336 (Pa. Super. 2001) (unpublished memorandum),
appeal denied, 796 A.2d 978 (Pa. 2002). Cabrera subsequently filed two
PCRA Petitions, both of which were denied.
On February 18, 2016, Cabrera filed the instant PCRA Petition, his
third. The PCRA Court entered a Pa.R.Crim.P. 907 Notice. Thereafter, the
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PCRA court dismissed Cabrera’s Petition. Cabrera filed a timely Notice of
Appeal.
On appeal, Cabrera raises the following question for our review:
Whether the [PCRA c]ourt erred in finding [Cabrera’s] PCRA
[Petition] untimely where the United States Supreme Court[,] in
Montgomery v. Louisiana[, 136 S. Ct. 718 (2016),] held that
any cases out of their Court that were substantive in nature were
retroactively applicable to all the [s]tates[,] and in doing so[,]
caused Alleyne v. [United States, 133 S. Ct. 2151 (2013),] to
become retroactively applicable to [Cabrera,] whose sentence
was unconstitutionally enhanced in violation of Alleyne[?]
Brief for Appellant at vi.
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).
Under the PCRA, a defendant must file any PCRA petition within one
year of the date that the judgment becomes final. 42 Pa.C.S.A.
§ 9545(b)(1). A judgment of sentence 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 the expiration of
time for seeking 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).
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Cabrera’s judgment of sentence became final in 2002, after the time to
seek review with the United States Supreme Court expired. See
Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super. 2007). Cabrera
had until 2003 to file a timely PCRA petition. Thus, Cabrera’s February 2016
PCRA Petition is facially untimely.
However, in the event that a PCRA petition is not filed within the one-
year time limitation, the PCRA provides three timeliness exceptions: (1) the
failure to raise the claim was the result of government interference; (2) the
facts of the new claim were unknown to the petitioner and could not have
been discovered with due diligence; or (3) the right asserted is a
constitutional right recognized by the United States Supreme Court or the
Pennsylvania Supreme Court after the time period provided in the section
and has been held to apply retroactively. 42 Pa.C.S.A. § 9545(b)(1)(i-iii).
Any PCRA petition invoking one of these exceptions shall be filed within sixty
days of the date the claim could have been presented. Id. § 9545(b)(2).
Here, Cabrera invokes the newly recognized constitutional right
exception based on the Alleyne decision. See Brief for Appellant at 1-3. 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. Cabrera
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argues that Alleyne applies retroactively and renders his sentence illegal.
See Brief for Appellant at 1-3.
Here, Cabrera filed the instant PCRA Petition on February 18, 2016,
well over sixty days after June 17, 2013, the date that Alleyne was decided.
See 42 Pa.C.S.A. § 9545(b)(2); see also Boyd, 923 A.2d at 517 (stating
that “[w]ith regard to an after-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, 2016 Pa.LEXIS 1536, *8 (Pa. 2016) (stating that “Alleyne
does not apply retroactively to cases pending on collateral review[.]”); see
also Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014)
(stating that “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 had become final.”).1 Cabrera failed to meet the
requirements of the newly recognized constitutional right exception. Thus,
the PCRA court properly dismissed Cabrera’s third PCRA Petition.
Order affirmed.
1
In support of his argument that Alleyne applies retroactively, Cabrera
cites Montgomery, supra. In Montgomery, the United States Supreme
Court held that Miller v. Alabama, 132 S. Ct. 2455 (2012), applies
retroactively to juveniles, who were under the age of eighteen at the time of
the commission of the crime, sentenced to mandatory life sentences without
the possibility of parole. Montgomery, 136 S. Ct. at 736. However, unlike
Miller, Alleyne does not apply retroactively. See Washington, supra.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/31/2016
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