Com. v. Ruiz-Latorre, M. ( 2016 )

J-S58011-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MIGUEL ANGEL RUIZ-LATORRE,
Appellant No. 2279 MDA 2015
Appeal from the PCRA Order December 15, 2015
in the Court of Common Pleas of Dauphin County
Criminal Division at Nos.: CP-22-CR-0001460-2011
CP-22-CR-0003663-2010
CP-22-CR-0005850-2010
BEFORE: GANTMAN, P.J., BOWES, J., and PLATT, J.*
JUDGMENT ORDER BY PLATT, J.: FILED AUGUST 05, 2016
Appellant, Miguel Angel Ruiz-Latorre, appeals from the order
dismissing his counseled, amended second petition seeking relief pursuant to
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541–9546, as
untimely. Appellant contends that his sentence must be vacated in a
retroactive application of Alleyne v. United States, 133 S. Ct. 2151
(2013). We affirm.
Appellant challenges the judgment of sentence imposed on November
11, 2011, pursuant to a mandatory minimum sentence provision following
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*
Retired Senior Judge assigned to the Superior Court.
J-S58011-16
his guilty plea to possession with intent to deliver a controlled substance in a
school zone.
Appellant raises one hybrid question for review:
Whether the trial court erred in denying relief in the form
of modifying and correcting an illegal sentence pursuant to
Alleyne, and the Pennsylvania cases that follow that decision,
and in its failure to treat the Appellant’s original nunc pro tunc
request for relief as a nunc pro tunc filing, which was filed after
Alleyne was decided?
(Appellant’s Brief, at 4) (superfluous capitalization omitted).
To the extent review of the PCRA court’s determinations is
implicated, an appellate court reviews the PCRA court’s findings
of fact to determine whether they are supported by the record,
and reviews its conclusions of law to determine whether they are
free from legal error. The scope of review is limited to the
findings of the PCRA court and the evidence of record, viewed in
the light most favorable to the prevailing party at the trial level.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citations and
internal quotation marks omitted). For legal questions our standard of
review is de novo, and our scope of review is plenary. See id.
Preliminarily, we note that the PCRA court properly treated Appellant’s
motion, filed September 6, 2013, to modify and reduce sentence nunc pro
tunc as a PCRA petition.
“We have repeatedly held that . . . any petition filed after the
judgment of sentence becomes final will be treated as a PCRA
petition.” Commonwealth v. Johnson, 803 A.2d 1291, 1293
(Pa. Super. 2002). That [the appellant] has attempted to frame
his petition as a “motion to correct illegal sentence” does not
change the applicability of the PCRA. See Commonwealth v.
Guthrie, 749 A.2d 502, 503 (Pa. Super. 2000) (appellant’s
“motion to correct illegal sentence” must be treated as PCRA
petition).
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J-S58011-16
Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011), appeal
denied, 47 A.3d 845 (Pa. 2012).
Substantively, Appellant maintains that he is entitled to have his
sentence vacated pursuant to Alleyne. (See Appellant’s Brief, at 7, 11).
However, our Supreme Court has recently decided that Alleyne does not
apply retroactively to cases pending on collateral review. See
Commonwealth v. Washington, No. 37 EAP 2015, 2016 WL 3909088, at
*8 (Pa. filed July 19, 2016). “We hold that Alleyne does not apply
retroactively to cases pending on collateral review, and that Appellant's
judgment of sentence, therefore, is not illegal on account of Alleyne.” Id.1
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/5/2016
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1
Moreover, Appellant’s incidental arguments, not included in his statement
of questions presented, are waived, unpersuasive and would not alter our
disposition.
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