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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
LUIS ANTONIO RODRIGUEZ-CRUZ, : No. 3845 EDA 2015
:
Appellant :
Appeal from the PCRA Order, December 3, 2015,
in the Court of Common Pleas of Chester County
Criminal Division at No. CP-15-CR-0004792-2011
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ.
JUDGMENT ORDER BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 12, 2016
Luis Antonio Rodriguez-Cruz appeals, pro se, from the order of
December 3, 2015, dismissing his second PCRA1 petition as untimely. We
affirm.
On December 5, 2012, appellant entered a negotiated guilty plea to
two counts of possession with intent to deliver (“PWID”), one count of
criminal conspiracy to commit PWID, and five counts of criminal solicitation
to commit PWID.2 The trial court imposed the agreed-upon sentence of 15
to 30 years’ imprisonment. On September 25, 2013, appellant filed a
motion for modification of sentence nunc pro tunc, which was denied on
1
Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
2
35 Pa.C.S.A. § 780-113(A)(30), 18 Pa.C.S.A. § 903, and 18 Pa.C.S.A.
§ 902(a), respectively.
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January 7, 2014. Appellant filed an untimely appeal from the January 7,
2014 order on April 10, 2014, which was quashed.
On June 20, 2014, appellant filed a PCRA petition and counsel was
appointed; however, that petition was subsequently withdrawn on May 13,
2015. On August 10, 2015, appellant filed the instant petition, his second,
which was dismissed as untimely on December 3, 2015. This timely appeal
followed on December 18, 2015.
On appeal, appellant argues that his sentence, which included
mandatory minimum sentences for drug trafficking under 18 Pa.C.S.A.
§ 7508, is unconstitutional and illegal in light of Alleyne v. United States,
U.S. , 133 S.Ct. 2151 (2013) (holding that any fact that, by law,
increases the penalty for a crime is required to be treated as an element of
the offense, submitted to a jury, rather than a judge, and found beyond a
reasonable doubt). For the reasons discussed in Commonwealth v.
Fennell, 105 A.3d 13 (Pa.Super. 2014), appeal denied, 121 A.3d 494 (Pa.
2015), and Commonwealth v. Cardwell, 105 A.3d 748 (Pa.Super. 2014),
appeal denied, 121 A.3d 494 (Pa. 2015), this court has determined
Section 7508 to be facially unconstitutional in its entirety. See also, e.g.,
Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc),
appeal denied, 121 A.3d 496 (Pa. 2015) (concluding that 42 Pa.C.S.A.
§ 9712.1, regarding the distance between drugs and guns, must be struck
down in its entirety as unconstitutional in light of Alleyne, as its subsections
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are not severable); Commonwealth v. Valentine, 101 A.3d 801
(Pa.Super. 2014), appeal denied, 124 A.3d 309 (Pa. 2015) (by allowing the
jury to determine beyond a reasonable doubt the elements of the mandatory
minimum sentencing provisions of 42 Pa.C.S.A. §§ 9712 and 9713, the trial
court performed an impermissible legislative function, effectively
determining that the unconstitutional provisions were severable).
Recently, however, our supreme court decided that Alleyne does not
apply retroactively to collateral attacks on mandatory minimum sentences
advanced in post-conviction relief proceedings. Commonwealth v.
Washington, A.3d , 2016 WL 3909088 (Pa. July 19, 2016).
Alleyne was not a groundbreaking, “watershed” rule of criminal procedure
that applies retroactively on collateral review. Id.; see Teague v. Lane,
489 U.S. 288 (1989) (plurality) (a new constitutional rule of criminal
procedure does not generally apply to convictions that were final when the
new rule was announced). Therefore, appellant is not entitled to the benefit
of Alleyne.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/12/2016
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