J. S59036/15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JOHN A. DUZICKY, :
:
Appellant : No. 482 WDA 2015
Appeal from the PCRA Order March 4, 2015
In the Court of Common Pleas of Beaver County
Criminal Division No(s).: CP-04-CR-0002004-2009
BEFORE: BOWES, DONOHUE, and FITZGERALD,* JJ.
JUDGMENT ORDER BY FITZGERALD, J.: FILED SEPTEMBER 30, 2015
Pro se Appellant, John A. Duzicky, appeals from the order entered in
the Beaver County Court of Common Pleas dismissing his second Post
Conviction Relief Act1 (“PCRA”) petition. Appellant contends his sentence is
illegal under Alleyne v. United States, 133 S. Ct. 2151 (2013). We affirm.
We adopt the facts and procedural history set forth by the PCRA
court. See PCRA Ct. Op., 3/4/15, at 2-3. On January 9, 2015, Appellant
filed the instant second petition. On January 21, 2015, the PCRA court
issued a Pa.R.Crim.P. 907 notice of intent to dismiss, and Appellant filed his
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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pro se response on February 8, 2015. The PCRA court dismissed Appellant’s
petition on March 4, 2015, and Appellant timely appealed.
Before addressing the merits of Appellant’s claims, we examine
whether we have jurisdiction to entertain the underlying PCRA petition. See
Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999). “Our standard of
review of a PCRA court’s dismissal of a PCRA petition is limited to examining
whether the PCRA court’s determination is supported by the evidence of
record and free of legal error.” Commonwealth v. Wilson, 824 A.2d 331,
333 (Pa. Super. 2003) (en banc) (citation omitted). A PCRA petition “must
normally be filed within one year of the date the judgment becomes final . . .
unless one of the exceptions in § 9545(b)(1)(i)-(iii) applies and the petition
is filed within 60 days of the date the claim could have been presented.”
Commonwealth v. Copenhefer, 941 A.2d 646, 648 (Pa. 2007) (citations
and footnote omitted).
Instantly, Appellant’s judgment of sentence became final on August 5,
2011; Appellant filed the instant serial petition on January 9, 2015, over
three years later. Thus, this Court must discern whether the PCRA court
erred by holding Appellant did not plead and prove one of the three
timeliness exceptions. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii); Copenhefer,
941 A.2d at 648. In this case, Appellant has alleged that Alleyne
established a new constitutional right that applies retroactively under
Section 9545(b)(1)(iii). “[N]either our Supreme Court, nor the United
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States Supreme Court has held that Alleyne is to be applied retroactively to
cases in which the judgment of sentence had become final.”
Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014).
Appellant’s judgment of sentence became final in 2011, and thus we agree
with the PCRA court’s determination that Appellant did not properly invoke
any one of the three timeliness exceptions. See Copenhefer, 941 A.2d at
648; Fahy, 737 A.2d at 223. Thus, the PCRA court lacked jurisdiction. See
Fahy, 737 A.2d at 223. Having discerned no error of law, we affirm the
order below. See Wilson, 824 A.2d at 333.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/2015
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\, ..
I
•"
IN THE COURT OF COIVfMONPLEAS OF BEA VER COUNTY
PENNSYLVANIA
CRIMINAL DIVISION
COMMONVfEALTH OF
PENNSYLVANIA
vs. NO. 2004 of2009
JOHN A. DUZICKY
OPINION AND ORDER
H. KNAFELC, J. March 4t\ 2015
Petitioner, John A. Duzicky, alleges that counsel was ineffective for failing
to raise the constitutionality of his sentence during appeal of his first post-
conviction petition. Petitioner asserts in his response to this Court's Notice of
Intent to Dismiss that his Petition is timely filed pursuant to the new decisional law
exception of the Post-Conviction Relief Act (PCRA). His argument is without
merit. Because this petition is untimely, this Court lacks jurisdiction to address
Petitioner's substantive claims. Petitioner's response presents no genuine issue
concerning any material fact and Petitioner is not entitled to post-conviction
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collateral relief. See Pa. R. Crim. P. 907 ( 1). After a review of Petitioner's response
and the record, the petition for post-conviction collateral relief is DISIVUSSED
FOR \VANT OF JURISDICTION.
I. PROCEDURAL HISTORY
Petitioner's charges stemmed from his participation with nine co-defendants
in a marijuana/cocaine distribution operation in Allegheny and Beaver counties
from January I, 2006, through June I, 2009. On October 25, 2010, he pied guilty
to two counts of corrupt organizations, two counts of criminal attempt, and four
counts of delivery of a controlled substance. On July 6, 2011, the trial court
sentenced Petitioner to term of imprisomnent of between six and twelve years.
Petitioner did not file a post-sentence motion or direct appeal from the judgment of
sentence.
On March 5, 2012, Petitioner filed a prose motion for post-conviction relief.
Through appointed counsel, Petitioner filed an amended motion on October 1,
2012. That post-conviction court denied Petitioner's motion on May 30, 2013. On
February 20, 2014, the Pennsylvania Superior Court affirmed the lower court's
decision. Petitioner filed a second petition for post-conviction relief on January 9,
2015. Finding that petition lacking in any genuine issue of material fact on which
relief could be granted, this Court provided Petitioner with notice of its intent to
dismiss on January 21, 2015. Pursuant to Pennsylvania Rule of Criminal Procedure
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907(1), petitioner was given twenty days to respond. On January 29, 2015,
Petitioner filed a timely response to the proposed dismissal.
II. DISCUSSION
Petitioner asserts that this Court erred in holding that it lacks jurisdiction to
review the merits of his claim because it is untimely under the PCRA. He argues
that his judgment of sentence was not final when the United States Supreme Court
issued the Alleyne decision. His argument lacks merit. Petitioner's judgment was
final and he is outside the time limitation to file a PCRA petition. He has failed to
plead and prove any applicable exception under the statute. The petition is
untimely, and must be dismissed because this Court does not have jurisdiction to
review its merits.
A. The Time Restrictions in the PCRA Statute are Jurisdictional in
Nature, and Preclude Consideration of the Merits of any Untimely
PCRA Petition by a Post-Conviction Comt.
The threshold inquiry in reviewing a PCRA petition is whether the Court has
jurisdiction to address the merits of the petition. See Commonwealth v. Fahy, 737
A.2d 214, 217 (Pa. 1999). In order for this Court to have jurisdiction, the petition
must have been filed in compliance with the statutorily defined time limitations.
See id. at 218. These requirements are mandatory, and may not be altered or
disregarded to reach the merits of the claims raised in the petition. Commonwealth
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v. Cintora, 69 A.3d 759, 762 (Pa. Super. Ct. 2013). This Court has no jurisdiction
to hear an untimely PCRA petition. Ibid.
B. The Petition Sub Judice is Untimely because it ,:vas Filed more than
One-Year Following the Date Petitioner's Judgment became Final and
because Petitioner has Failed to Plead and Prove that any of the
Statutmy Exceptions Apply to his Case.
A petition is timely, thus conferring jurisdiction, in two situations. The first
is where the petition is filed within one year of the date that judgment became
final. 42 Pa. Cons. Stat. § 9545(b )(1). This is true of any petition, including a
second or subsequent petition. Ibid. The second situation applies when a petition is
filed later than one year following final judgment. In that event, a petitioner has the
burden of pleading and proving that one of the statutory exceptions applies.
Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012).
1. General Rule: Petitions must be Filed within One Year of
Final Judgment to be Timely
In general, any petition, including a second or subsequent petition, must be
filed within one year of the date that Petitioner's judgment of sentence became
final. A judgment is deemed final for purposes of post-conviction relief
immediately upon expiration of the time for seeking direct review. Commonwealth
v. Callahan, 101 A.3d 118, 122 (Pa. Super. Ct. 2014). "Direct review" includes
review as a right before the Pennsylvania Superior Court and the discretionary
review of the Pennsylvania Supreme Court and the United States Supreme Court.
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Commonweath v. Liebensperger, 904 A.2d 40, 45 (Pa. Super. Ct. 2006). In
contrast, collateral proceedings occur after the conclusion of direct review. In
fixing the date on which a judgment of sentence becomes final, the PCRA does not
refer to the conclusion of collateral review; rather, the only relevant timeframe is
the expiration of the time for seeking direct review. Callahan, 10 I A.3d at 122.
Where a defendant fails to file a direct appeal from conviction, his judgment of
sentence becomes final thirty days after imposition of the sentence. Commonwealth
v. Jerman, 762 A.2d 366, 368 (Pa. Super. Ct. 2000).
Petitioner's judgment became final on August 5, 2011. Petitioner did not file
post-trial motions or an appeal following sentence. Where a defendant fails to file a
direct appeal with the Superior Court of Pennsylvania following sentence, his
judgment will become final thirty days after the imposition of sentence.
Commonwealth v. Brown, 767 A.2d 576, 579 n.2 (Pa. Super. Ct. 2001). Petitioner
was sentenced on July 6, 2011. Because no appeal or post-trial motions were taken,
the thirty day rule applies. Thirty days out from sentencing date is August 5, 2011,
and that date is the date on which Petitioner's appellate rights expired. In order to
be timely under section 9545(b )(I), Petitioner would have had to file this PCRA
petition before August 6, 2012, one year after his judgment became final. 1
1
As of August 5, 2011, Petitioner had one year in which to file a PCRA petition,
including a second or subsequent PCRA petition. One year from August 5, 2011,
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Petitioner filed the PCRA petition sub judice on January 9, 2015, more than two
years past the timeliness deadline in the PCRA.2 The petition is therefore untimely
under section 9545(b)(l). In order for this Court to have jurisdiction to entertain
falls on Saturday, August 5, 2012. Because the last day of that one-year period fell
on a Saturday, Petitioner had until Monday, August 6, 2012, to file his PCRA
petition. See 1 Pa. C.S. § 1908 (describing the computation of time where the day
of a given time period falls on a weekend or holiday); see also Commonwealth v.
Callahan, 101 A.3d 118, 122 n.10 (Pa. Super. Ct. 2014).
2
Petitioner alleges that his judgment was not final because his post-conviction
appeal was still pending. The pendency of an appeal of a collateral matter has no
effect on the date on which a judgment becomes final. See Commonwealth v.
Callahan, 101 A.3d 118, 122 (Pa. Super. Ct. 2014) (holding that "[i]n fixing the
date upon which a judgment of sentence becomes final, the PCRA does not refer to
the conclusion of collateral review or the time for appealing a collateral review
determination .... [T]he plain language of the PCRA statute shows that a judgment
of sentence becomes final immediately upon expiration of the time for seeking
direct review, even if other collateral proceedings are still ongoing."). The only
date relevant to final judgment is the expiration of Petitioner's appellate right after
his failure to appeal his judgment of sentence.
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the merits the petition, Petitioner must establish that one of the exceptions listed in
section 9545(b )(1 )(i)-(iii) applies.
2. Exceptions to the One-Year Rule
The PCRA statute lists three exceptions to the one-year rule. An otherwise
untimely petition may nevertheless be considered if 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;
(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 provided in this section has been held by
that court to apply retroactively.
(2) Any petition invoking an exception provided in paragraph (I)
shall be filed within 60 days of the date the claim could have been
presented.
42 Pa. Cons. Stat. § 9545(b)(l)(i)-(iii), (2); see also Commonwealth v. Fahy, 737
A.2d 214, 218 (Pa. 1999). Petitioner asserts that this Court has jurisdiction by
virtue of section 9545(b )( 1 )(iii), the new decisional law exception.
The new decisional law exception provides that a post-conviction court may
entertain a post-conviction relief petition where the right asserted is (1) a
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constitutional right recognized by the United States Supreme Court or the
Pennsylvania Supreme Court and (2) that right has been held by that court to apply
retroactively. 42 Pa. C.S. § 9545(b )( I )(iii). A new rule of constitutional law is
applied retroactively to cases on collateral review only where the United States
Supreme Court or the Pennsylvania Supreme Court specifically holds it to be
retroactively applicable to those cases. Commonwealth v. Miller, 102 A.3d 988,
995 (Pa. Super. Ct. 2014); see also Commonwealth v. Phillips, 31 A.3d 317, 320
(Pa. Super. Ct. 2011 ). Additionally, pursuant to section 9545(b )(2), the petition
must be filed within sixty days of the date the claim could have been presented.
Petitioner claims that the new decisional law exception in section
9545(b)(l)(iii) makes his petition timely, therefore establishing this Court's
jurisdiction. His contention is inapposite. First, even assuming that Alleyne
announced a new constitutional right, neither the Pennsylvania Supreme Court nor
the United States Supreme Court has held that Alleyne is to be applied retroactively
to cases in which the judgment of sentence had become final. Miller, 102 A.3d at
995. Here, Petitioner's judgment of sentence became final on August 5, 2011, and
he therefore cannot benefit from the United States Supreme Court's holding in
Alleyne. This petition is outside the scope of the new decisional law exception,
does nothing to help Petitioner overcome the requirement that PCRA petitions be
timely.
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Ill. CONCLUSION
Having failed to show that the petition is timely under either the general rule
or any of the exceptions, this Court has no jurisdiction to proceed to merits of
Petitioner's claim. This Court may not address the merits of the issues raised in a
PCRA petition if the petition was not timely filed. Commonwealth v. Jones, 54
A.3d 14, 17 (Pa. 2012). The petition for post-conviction relief is dismissed in
accordance with the following order.
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IN THE COURT OF COMMON PLEAS OF BEA VER COUNTY
PENNSYLVANIA
CRIMINAL DIVISION
COrvlMON\\TEALTH OF
PENNSYLVANIA
vs. NO. 2004 of 2009
JOHN A. DUZICKY
ORDER
H. KNAFELC, J. March 4th 2015
'
AND NOW, to wit, this 4th day of March, 2015, it is hereby ORDERED
AND DECREED that the petition for post-conviction relief is DISMISSED FOR
WANT OF JURISDICTION.
BY THE COURT:
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