Com. v. Ramirez, J. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 Super., filed May 1, 2014) (unpublished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
-2-
J-S45030-17
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
-3-