J-S47024-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALLEN VIDMOSKO
Appellant No. 2231 MDA 2015
Appeal from the PCRA Order December 1, 2015
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0002279-2009
BEFORE: SHOGAN, J., LAZARUS, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED JULY 18, 2016
Appellant Allen Vidmosko appeals from the order entered in the
Lackawanna County Court of Common Pleas dismissing as untimely his
petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-
9546. We affirm.
On December 21, 2009, Appellant pled guilty to one count of rape by
forcible compulsion.1 On April 6, 2010, the trial court sentenced Appellant to
10 to 20 years’ incarceration. Appellant filed a motion for reconsideration,
which the trial court denied on April 13, 2010. Appellant did not file a direct
appeal.
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1
18 Pa.C.S. § 3121(a)(1).
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On February 2, 2012, Appellant filed a petition for writ of habeas
corpus and to withdraw guilty plea. The PCRA court treated the petition as a
PCRA petition and appointed counsel. On March 8, 2012, the
Commonwealth filed a motion to dismiss the PCRA petition. On March 4,
2013, counsel filed a motion to withdraw as counsel pursuant to
Turner/Finley.2 On June 4, 2013, the PCRA court granted the petition to
withdraw and issued notice of its intent to dismiss the PCRA petition without
a hearing pursuant to Pennsylvania Rule of Criminal Procedure 907. On July
20, 2013, the PCRA court dismissed the PCRA petition. This Court affirmed
the order on May 14, 2014 and, on October 21, 2014, the Supreme Court of
Pennsylvania denied Appellant’s petition for allowance of appeal.
On July 21, 2015, Appellant filed a second PCRA petition. On October
22, 2015, the PCRA court issued notice of its intent to dismiss the petition
without a hearing. On November 20, 2015, Appellant filed an objection to
the notice of intent. On December 1, 2015, the PCRA court dismissed the
petition. On December 18, 2015, Appellant filed a timely notice of appeal.
Both Appellant and the trial court complied with Pennsylvania Rule of
Appellate Procedure 1925.
Appellant raises the following issues on appeal:
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2
Commonwealth v. Turner, 544 A.2d 927 (Pa.1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988) (en banc).
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I. Did the [PCRA c]ourt err in denying the [PCRA p]etition
without a hearing by declaring the [PCRA p]etition facially
untimely when [Appellant] filed the instant [p]etition
timely within the allotted sixty (60) days of discovering his
sentence was unconstitutional, therefore, illegal in light of
the Pennsylvania Supreme Court decision in
Commonwealth v. Hopkins, 117 A.3d 247 ([Pa.]2015)?
II. Did the [PCRA c]ourt err by denying the [PCRA p]etition
without a hearing by raising and utilizing the United States
Supreme Court’s decision in Alleyne v. United States,
133 S.Ct. 2151 (2013) sua sponte, when it was not raised
by [Appellant], who instead raised Hopkins, as the
primary basis for the instant Petition?
III. Did the [PCRA c]ourt err in denying the [PCRA
p]etition without a hearing when the [PCRA c]ourt always
retains jurisdiction through the [c]ourt’s inherent power to
correct [Appellant’s] illegal sentence?
Appellant’s Brief at 4.
Before addressing the merits of a PCRA petition, we must first
determine whether the petition is timely. The PCRA provides that a petition,
“including a second or subsequent petition, shall be filed within one year of
the date the judgment becomes final.” 42 Pa.C.S. § 9545(b)(1); accord
Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010);
Commonwealth v. Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003). A
judgment is 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. § 9545(b)(3).
Three exceptions to the PCRA’s time-bar exist. The exceptions allow
for limited circumstances under which a court may excuse the late filing of a
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PCRA petition. 42 Pa.C.S. § 9545(b)(1); Monaco, 996 A.2d at 1079. To
establish that an exception to the PCRA time-bar applies, a petitioner must
allege and prove:
(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
(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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). When invoking an exception to the PCRA
time-bar, the petition must “be filed within 60 days of the date the claim
could have been presented.” 42 Pa.C.S. § 9545(b)(2).
Appellant’s judgment of sentence became final on May 13, 2010, when
the time to seek review by this Court expired.3 He had one year from that
date, i.e., until May 13, 2011, to file a timely PCRA petition. Therefore, his
current petition, filed on July 21, 2015, is facially untimely.
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3
Appellant had 30 days from the order denying his motion for
reconsideration of sentence, docketed on April 13, 2010, to file a direct
appeal. Pa.R.A.P. 903(a).
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Appellant maintains he has established the newly discovered fact
exception to the PCRA time bar, because the Pennsylvania Supreme Court
did not issue a decision in Commonwealth v. Hopkins, 117 A.3d 247
(Pa.2015), until June 15, 2015.4 However, case decisions are not facts for
purposes of 42 Pa.C.S. § 9545(b)(1)(ii). Commonwealth v. Cintora, 69
A.3d 759, 763 (Pa.Super.2013).
Appellant also argues that we have the inherent power to correct
illegal sentences. Appellant’s Brief at 16. “Although legality of sentence
[claims are] always subject to review within the PCRA, claims must still first
satisfy the PCRA’s time limits or one of the exceptions thereto.”
Commonwealth v. Infante, 63 A.3d 358, 365 (Pa.Super.2013).
Therefore, because Appellant’s PCRA petition is untimely, this Court lacks
the jurisdiction to hear any claim, including a legality of sentence challenge.
Id.
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4
Contrary to Appellant’s arguments, the decision in Hopkins did not create
a new fact “of his sentence becoming illegal.” Appellant’s Brief at 8, 15. In
Hopkins, the Supreme Court of Pennsylvania found that pursuant Alleyne
v. United States, --- U.S. ---, 133 S.Ct. 2151, 2158, 186 L.Ed.2d 314
(2013), the mandatory minimum sentencing scheme set forth in 18 Pa.C.S.
§ 6317 (“Drug-free school zones”) was unconstitutional in its entirety. See
Hopkins, 117 A.3d at 262. The appellant in Hopkins had filed a direct
appeal, as his sentence was not final at the time the Supreme Court of the
United States issued its decision in Alleyne.
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Because Appellant failed to allege and prove any exception to the
PCRA time bar, the PCRA court properly dismissed his second PCRA petition
as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/18/2016
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