Com. v. Rodriguez, A.

• Court: Superior Court of Pennsylvania
• Decided: September 24, 2014
• Docket: 327 EDA 2014
• Status: Unpublished

Opinion

J-S55036-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

ALEXIS RODRIGUEZ

Appellant No. 327 EDA 2014

Appeal from the PCRA Order December 20, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0716259-1989

BEFORE: BOWES, J., SHOGAN, J., and OTT, J.

MEMORANDUM BY OTT, J.: FILED SEPTEMBER 24, 2014

Alexis Rodriguez appeals pro se from the order entered on December

20, 2013, in the Court of Common Pleas of Philadelphia County, dismissing,

as untimely, his fourth petition, filed pursuant to the Pennsylvania Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541 9546. Based upon the

following, we affirm.

The PCRA court aptly summarized the background of this case in its

Opinion and we adopt its recitation. See PCRA Court Opinion, 2/27/2014, at

1 2. We simply note, for purposes of this discussion, that, in 1990,

Rodriguez was sentenced to life imprisonment, after he was convicted by a

jury of first-degree murder, criminal conspiracy, and possession of an J-S55036-14

instrument of crime.1 At the time of the offenses, Rodriguez was 18 years

-

conviction counsel ineffective when seeking and advising as to parole, and

life-without-parole or

sentence of life-without-possibility-of-

individual over 17 violate the 8th Amendment, Article I § 13 of the

[Pennsylvania Constitution] and Article 5 of the Universal Declaration of

Human Rights by divesting a court of its judicial discretion to graduate and 2

we examine whether the PCRA

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2014)

(quotations and citation omitted), cert. denied, 134 S. Ct. 2695 (U.S. 2014).

PCRA timeliness requirement, however, is mandatory and jurisdictional

Id. (citation omitted).

____________________________________________

1 See 18 Pa.C.S. § 2502(a), 903, and 907, respectively. 2 On January 13, 2014, Rodriguez filed his notice of appeal, and also filed a

ineffectiveness and life-without-parole sentences for individuals between 18 and 25 years of age. See Rodri

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All PCRA petitions must be filed within one year of the date the

judgment of sentence becomes final, unless the petition alleges, and the

petitioner proves, that one of the three enumerated exceptions to the time

for filing requirement is met. See 42 Pa.C.S. § 9545(b)(1).3 A judgment is

review in the Supreme Court of the United States and the Supreme Court of

9545(b)(3).

1998,4 and therefore the present PCRA petition, filed April 5, 2013, is

United States Supreme Court decision in Miller v. Alabama, 132 S. Ct. 455

3 The PCRA exceptions that allow for review of an untimely petition are as follows: (1) governmental interference; (2) the discovery of previously unknown facts; and (3) a newly-recognized constitutional right. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). 4 See Commonwealth v. Rodriguez, 876 A.2d 469 [2041 EDA 2004] (Pa. Super. 2005) (unpublished memorandum, at 3).

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2012),5

recognized constitutional right. See 42 Pa.C.S. § 9545(b)(1)(iii).6

-day period

Commonwealth v. Brandon, 51 A.3d 231, 235 (Pa. Super. 2012)

(quotations and citation omitted). Here, the United States Supreme Court

decided Miller on June 25, 2012. However, R

filed until April 5, 2013, well beyond sixty days of when the claim could have

untimely under Section 9545(b)(2).

Moreover, we agree with the PCRA court that Rodriguez cannot satisfy

the requirements of the newly recognized constitutional right exception, 42

Pa.C.S. § 9545(b)(1)(iii), since (1) Miller does not apply because Rodriguez ____________________________________________

5 In Miller v. Alabama, 132 S. Ct. 2455 (2012), the United States Supreme for those under the age of 18 Id. at 2460 (emphasis added). 6

constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and Pa.C.S. § 9545(b)(1)(iii).

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was 18 years old when he committed the underlying murder,7 and (2) the

Pennsylvania Supreme Court, in Commonwealth v. Cunningham, 81 A.3d

1, 11 (Pa. 2013), cert. denied, 134 S. Ct. 2724 (U.S. 2014), has held that

Milller does not apply retroactively. See PCRA Court Opinion, 2/27/2014,

at 3 dd that in Commonwealth

v. Cintora, 69 A.3d 759, 764 (Pa. Super. 2013), appeal denied, 81 A.3d 75

(Pa. 2013), this Court held the contention that Miller applies to persons

over 18 whose brains were immature at the time of the crime does not bring

the matter within the newly recognized constitutional right exception.8

Accordingly, we conclude there is no basis upon which to disturb the

decision of the PCRA court, and, therefore, we affirm the order of dismissal.

Order affirmed.

7 See Footnote 5, supra

Opinion, 2/27/2014, at 3. See also

Universal Declaration of Human Rights, and Article I, Section 13 of the Pennsylvania Constitution, he provides no argument in his brief in this regard and, therefore, this claim is waived. See Commonwealth v. Quel, 27 A.3d 1033, 1042 (Pa. Super. 2011) (failure to develop claim in appellate brief results in waiver). In any event, these arguments would not overcome the PCRA time-bar.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/24/2014

-6- Circulated 08/27/2014 11:48 AM Circulated 08/27/2014 11:48 AM Circulated 08/27/2014 11:48 AM Circulated 08/27/2014 11:48 AM