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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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 
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instrument of crime.1

 At the time of the offenses, Rodriguez was 18 years 

old. In this appeal, Rodriguez presents two questions: (1) “Was postconviction counsel ineffective when seeking and advising as to parole, and 

does the ‘sentencer’ have the power[/]discretion to impose a sentence of 

life-without-parole or life ‘with the possibility of parole’”, and (2) “Is 

sentence of life-without-possibility-of-parole ‘grossly disproportionate’, does 

statute requiring mandatory imposition of ‘life without parole’ for an 

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 

proportion a sentence.” Rodriguez’s Brief at ii.2

“In reviewing the denial of PCRA relief, we examine whether the PCRA 

court’s determinations are supported by the record and are free of legal 

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

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

“The PCRA timeliness requirement, however, is mandatory and jurisdictional 

in nature.” 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 

“statement of questions raised on appeal,” raising issues of counsel’s 

ineffectiveness and life-without-parole sentences for individuals between 18 

and 25 years of age. See Rodriguez’s Statement, 1/13/2014.
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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 

deemed final “at the conclusion of direct review, including discretionary 

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

Pennsylvania, or at the expiration of time for seeking review.” 42 Pa.C.S. § 

9545(b)(3). 

Here, Rodriguez’s judgment of sentence became final on October 13, 

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

patently untimely. However, given that Rodriguez’s petition references the 

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 Rodriguez implicates the PCRA’s statutory exception for a newly 

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

The PCRA requires that any petition invoking a PCRA exception “shall 

be filed within 60 days of the date the claim could have been presented.” 42 

Pa.C.S. § 9545(b)(2). Relevant to the present petition, “the sixty-day period 

begins to run upon the date of the underlying judicial decision.” 

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, Rodriguez’s petition was not 

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

been presented. Therefore, we conclude Rodriguez’s PCRA petition is 

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 

Court held “that mandatory life without parole for those under the age of 

18 at the time of their crimes violates the Eighth Amendment’s prohibition 

on ‘cruel and unusual punishments.’” Id. at 2460 (emphasis added). 

6 Section 9545(b)(1)(iii) requires a petitioner to plead and prove “a 

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 has been held by that court to apply retroactively.” 42

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 3–4. To the PCRA court’s analysis, we also add 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. The PCRA court notes, “It is undisputed that 

[Rodriguez] was 18 years old at the time the murder occurred.” PCRA Court 

Opinion, 2/27/2014, at 3. See also Rodriguez’s Brief at 10 (“Petitioner was 

18 at the time of alleged offense.”).

8

Furthermore, although Rodriguez’s second claim refers to Article 5 of the 

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 
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