J-S38030-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ALBERT DURAN, III

Appellant No. 190 MDA 2015

Appeal from the PCRA Order entered January 5, 2015

In the Court of Common Pleas of York County

Criminal Division at No: CP-67-CR-0000931-2006

BEFORE: WECHT, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 09, 2015

Appellant, Albert Duran, III, appeals from the January 5, 2015 order of 

the Court of Common Pleas of York County denying relief under the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. Upon review, we 

affirm.

The trial court summarized the relevant background as follows:

Appellant was convicted by a jury of possession of a controlled 

substance, possession of a small amount of marijuana, two 

counts of possession with intent to deliver a controlled 

substance, criminal conspiracy to possess a controlled substance 

with intent to deliver, possession of an instrument of crime, and 

receiving stolen property. As a result, Appellant was sentenced 

on July 17, 2006 to a term of 111⁄2 to 23 years confinement. 

Following reinstatement of Appellant’s direct appeal rights, the 

Superior Court affirmed the judgment of sentence on May 12, 

2009. Appellant filed the instant PCRA [p]etition on December 

31, 2014—more than five (5) years after the judgment of 

sentence became final in 2009. 
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Trial Court Opinion, 3/4/15, at 1-2 (citations omitted). 

The PCRA court denied Appellant’s PCRA petition on January 5, 2015 

as untimely. This appeal followed. 

On appeal, Appellant raises several issues, which we can summarize in 

two claims. First, Appellant claims that his sentence is illegal under Alleyne 

v. United States, 133 S. Ct. 2151 (2013) (a jury must find beyond a 

reasonable doubt any fact triggering a mandatory minimum sentence). 

Second, Appellant claims the PCRA is unconstitutional because it 

impermissibly abrogated the writ of habeas corpus. We conclude that 

Appellant is not entitled to relief on his claims.

“Our standard of review regarding a PCRA court’s order is whether the 

determination of the PCRA court is supported by the evidence of record and 

is free of legal error. The PCRA court’s findings will not be disturbed unless 

there is no support for the findings in the certified record.” 

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011) 

(quotation marks and citations omitted).

Before we can entertain the merits of the claims, we must first 

determine whether this matter is properly before us. The instant petition, 

which Appellant filed approximately five years after his judgment of 

sentence became final, ordinarily would be deemed untimely. Indeed, 

[i]t is well settled that [a]ny and all PCRA petitions must be filed 

within one year of the date on which the petitioner’s judgment 

became final, unless one of three statutory exceptions applies. 
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A judgment becomes 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 the review. 42 Pa.C.S.A. 

§ 9545(b)(3).

Id. at 1061–62 (internal footnote and quotation marks omitted). 

Here, Appellant’s sentence became final on June 12, 2009, upon 

expiration of the time for seeking discretionary review, and Appellant had 

one year from that date to file his PCRA petition, i.e., June 12, 2010. As 

noted, he filed his petition on December 31, 2014, over four years after the 

deadline. The petition is, therefore, untimely. See, e.g., Commonwealth 

v. Hutchins, 760 A.2d 50, 54 (Pa. Super. 2000). Thus, unless one of the 

exceptions to the PCRA’s timeliness requirements applies, we cannot review 

the merits of Appellant’s claims. Id. at 53. 

The exceptions to the PCRA’s timeliness requirements are set forth in 

42 Pa.C.S.A. § 9545, which, in relevant part, provides as follows:

(b) Time for filing petition.—

(1) Any petition under this subchapter, including a second or 

subsequent petition, shall be filed within one year of the date the 

judgment becomes final, unless the petition alleges and the 

petitioner proves that:

(i) the failure to raise the claim previously was the result of 

interference by government officials with the presentation of 

the claim in violation of the Constitution or laws of this 

Commonwealth or the Constitution or laws of the United 

States;

(ii) the facts upon which the claim is predicated were 

unknown to the petitioner and could not have been 

ascertained by the exercise of due diligence; or
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(iii) the right asserted is 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.

(2) Any petition invoking an exception provided in paragraph (1) 

shall be filed within 60 days of the date the claim could have 

been presented.

42 Pa.C.S.A. § 9545(b)(1) and (2).

According to Appellant, Alleyne created a new constitutional right. 

Thus, Appellant believes, his Alleyne-based claim is timely under Section 42 

Pa.C.S.A. § 9545(b)(1)(iii). On the merits, Appellant believes that 

imposition of the mandatory minimum sentence under section 42 Pa.C.S.A. 

§ 9712.11is unconstitutional under Alleyne. We disagree. 

____________________________________________

1 Section 9712.1 provided, in relevant part:

(a) Mandatory sentence.--Any person who is convicted of 

[violating 35 P.S. § 780-113(a)(30)] when at the time of the 

offense the person or the person’s accomplice is in physical 

possession or control of a firearm, whether visible, concealed 

about the person or the person’s accomplice or within the actor’s 

or accomplice’s reach or in close proximity to the controlled 

substance, shall likewise be sentenced to a minimum sentence of 

at least five years of total confinement.

(c) Proof at sentencing.--Provisions of this section shall not be 

an element of the crime, and notice thereof to the defendant 

shall not be required prior to conviction, but reasonable notice of 

the Commonwealth’s intention to proceed under this section 

shall be provided after conviction and before sentencing. The 

applicability of this section shall be determined at sentencing. 

The court shall consider any evidence presented at trial and shall 

(Footnote Continued Next Page)
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Appellant’s case was at the collateral stage when Alleyne was decided 

(June 23, 2013), and Alleyne does not apply retroactively to cases on 

collateral review. Commonwealth v. Riggle, 2015 PA Super 147, 2015 Pa. 

Super. LEXIS 399, at *15-16 (filed July 7, 2015); accord Commonwealth 

v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (Alleyne did not trigger the 

newly-retroactive-constitutional-right exception to the PCRA’s time bar); 

United States v. Winkelman, 746 F.3d 134, 136 (3d Cir. 2014) (“[W]e 

now hold that Alleyne cannot be applied retroactively to cases on collateral 

review.”). Alleyne is retroactive only to cases that were still on direct

review when it was decided—June 23, 2013. Because Appellant’s case was 

no longer on direct review when Alleyne was decided, he is not entitled to 

relief under Alleyne.

2

(Footnote Continued) _______________________

afford the Commonwealth and the defendant an opportunity to 

present any necessary additional evidence and shall determine, 

by a preponderance of the evidence, if this section is applicable.

42 Pa.C.S.A. § 9712.1(a) and (c) (other subsections omitted). In 

Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc), we 

held that § 9712.1(c) violates Alleyne. We further held that subsection (c) 

could not be severed from the remainder of § 9712.1, making the statute 

unconstitutional in toto. Applying similar logic, our Supreme Court recently 

held unconstitutional 18 Pa.C.S.A. § 6317, which has the same language as 

42 Pa.C.S.A. § 9712.1(c). See Commonwealth v. Hopkins, 117 A.3d 247 

(Pa. 2015).

2 Even if we were to conclude that Alleyne applies here, the instant petition 

would nonetheless be untimely because Appellant failed to file his instant 

petition within 60 days of the issuance of Alleyne. See 42 Pa.C.S.A. 

(Footnote Continued Next Page)
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Appellant next argues the PCRA is unconstitutional because it 

impermissibly abrogated the remedy of habeas corpus, a remedy specifically 

provided for in the Pennsylvania Constitution. This claim is meritless.

First, Appellant provides no authority for this claim. As such, the claim 

is waived. See Pa.R.A.P. 2119(a). Second, the PCRA has not abrogated the 

remedy of habeas corpus. In fact, the PCRA subsumes the writ of habeas 

corpus, and habeas corpus provides an independent basis for relief in those 

cases when there is no remedy under the PCRA. See, e.g., 

Commonwealth v. Fahy, 737 A.2d 214, 223-24 (Pa. 1999); 

Commonwealth v. Peterkin, 722 A.2d 638, 639-41 (Pa. 1998). 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/9/2015

(Footnote Continued) _______________________

§ 9545(b)(2). As noted, Appellant filed his petition on December 31, 2014, 

556 days after the publication of Alleyne (June 23, 2013).