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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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



____________________________________________


*
    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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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




____________________________________________


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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