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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ROBERT HRUSOVSKY,
Appellant No. 3299 EDA 2016
Appeal from the PCRA Order September 12, 2016
in the Court of Common Pleas of Northampton County,
Criminal Division, No(s): CP-48-CR-0000684-1995
BEFORE: OLSON, SOLANO and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED MAY 05, 2017
Robert Hrusovsky ("Hrusovsky"), pro se, appeals from the dismissal of
his second Petition for relief filed pursuant to the Post Conviction Relief Act
("PCRA"). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
In 1996, Hrusovsky pled guilty to five counts of involuntary deviate
sexual intercourse arising out of his sexual abuse of his niece. During
sentencing, the trial court indicated that the mandatory minimum sentence
on each count was five years in prison. The trial court subsequently
imposed a sentence of five to ten years in prison on each conviction, to run
consecutively. This Court affirmed the judgment of sentence. See
Commonwealth v. Hrusovsky, 698 A.2d 665 (Pa. Super. 1997)
(unpublished memorandum).1
1 Hrusovsky also entered a guilty plea to related charges in Lehigh County,
and was sentenced to a concurrent aggregate prison term of 16 to 48 years.
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In August 2004, Hrusovsky filed his first PCRA Petition, which was
denied. This Court affirmed the denial. See Commonwealth v.
Hrusovsky, 911 A.2d 181 (Pa. Super. 2006), appeal denied, 931 A.2d 656
(Pa. Super. 2007).
On June 16, 2016, Hrusovsky filed the instant PCRA Petition. The
PCRA court appointed Hrusovsky counsel, who subsequently filed a Petition
to Withdraw and a no -merit letter pursuant to Commonwealth v. Turner,
544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213
(Pa. Super. 1988) (en banc). The PCRA court granted counsel's Petition to
Withdraw and issued a Pennsylvania Rule of Criminal Procedure 907 Notice.
On September 12, 2016, the PCRA court dismissed the Petition. Hrusovsky
filed a Notice of Appeal, dated October 6, 2016, but docketed on October 13,
2016.
Initially, we must determine whether Hrusovsky filed a timely Notice of
Appeal. It is well -settled that "the date the appeal period begins to run,
'shall be the day the clerk of the court ... mails or delivers copies of the
order to the parties.' Commonwealth v. Carter, 122 A.3d 388, 391 (Pa.
Super. 2015) (quoting Pa.R.A.P. 108(a)(1)); see also Pa.R.Crim.P.
114(C)(2)(c). Here, the docket indicates that the Order dismissing the PCRA
Petition was served on Hrusovsky on September 14, 2016. Thus,
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Hrusovsky's Notice of Appeal, docketed on October 13, 2016, was timely
filed. See Pa.R.A.P. 903(a).2
We review an order dismissing a petition under the PCRA
in the light most favorable to the prevailing party at the PCRA
level. This review is limited to the findings of the PCRA court
and the evidence of record. We will not disturb a PCRA court's
ruling if it is supported by evidence of record and is free of legal
error.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
Any PCRA petition "shall be filed within one year of the date the
judgment becomes final[.]" 42 Pa.C.S.A. § 9545(b)(1). A judgment of
sentence 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." Id. § 9545(b)(3). The PCRA's timeliness requirements are
jurisdictional in nature and a court may not address the merits of the issues
raised if the PCRA petition was not timely filed. See Commonwealth v.
Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
Here, Hrusovsky's judgment of sentence became final in May 1997,
after the time to seek review with the Supreme Court of Pennsylvania
2 Further, the Commonwealth concedes that Hrusovsky timely filed his
Notice of Appeal on October 6, 2016, under the prisoner mailbox rule. See
Brief for the Commonwealth at 3 n.7 (citing Commonwealth v. Wilson,
911 A.2d 942, 944 n.3 (Pa. Super. 2006)).
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expired. See Pa.R.A.P. 1113. Thus, Hrusovsky's 2016 PCRA Petition is
facially untimely.
However, Pennsylvania courts may consider an untimely petition if the
appellant can explicitly plead and prove one of three exceptions set forth
under 42 Pa.C.S.A. § 9545(b)(1)(i-iii). Any petition invoking one of these
exceptions "shall be filed within 60 days of the date the claim could have
been presented." 42 Pa.C.S.A. § 9545(b)(2); Albrecht, 992 A.2d at 1094.
Here, Hrusovsky invokes the newly -recognized constitutional right
exception based on Alleyne v. United States, 133 S. Ct. 2151 (2013).
See Brief for Appellant at 7-19. In Alleyne, the Supreme Court held that
any fact that increases the sentence for a given crime must be submitted to
the jury and found beyond a reasonable doubt. Alleyne, 133 S. Ct. at
2155. The Supreme Court reasoned that a Sixth Amendment violation
occurs where these sentence -determinative facts are not submitted to a
jury. Id. at 2156. Hrusovsky argues that Alleyne applies retroactively and
renders his sentence illegal. See Brief for Appellant at 7-8, 9-12, 14, 16-19.
Here, Hrusovsky filed the instant PCRA Petition on June 16, 2016, well
over 60 days after June 17, 2013, the date that Alleyne was decided. See
Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa. Super. 2007) (stating
that "[w]ith regard to [a newly] -recognized constitutional right, this Court
has held that the sixty-day period begins to run upon the date of the
underlying judicial decision."); see also 42 Pa.C.S.A. § 9545(b)(2).
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Further, the rule established in Alleyne does not apply retroactively
where, as here, the judgment of sentence is final. See Commonwealth v.
Washington, 142 A.3d 810, 820 (Pa. 2016) (stating that "Alleyne does not
apply retroactively to cases pending on collateral review[.]"); see also
Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (noting
that "[t]hough not technically waivable, a legality [of sentence] claim may
nevertheless be lost should it be raised ... in an untimely PCRA petition for
which no time -bar exception applies, thus depriving the court of jurisdiction
over the claim.") (citation omitted).3
As Hrusovsky failed to meet the requirements of the newly-recognized
constitutional right exception, the PCRA court properly dismissed his second
PCRA Petition.
Order affirmed.
3 Hrusovsky cites to numerous cases relying upon Alleyne to support his
argument that Alleyne applies retroactively and renders his sentence illegal.
However, those cases, as well as the timeliness exception invoked by
Hrusovsky, are based upon the new rule of law established in Alleyne,
which is inapplicable to this case. See Washington, supra. Further, to the
extent Hrusovsky cites to cases from this Court to avoid the 60 -day
requirement, we note that to properly invoke the newly -recognized
constitutional right exception, the new right must be established in a
decision by the Supreme Court of the United States or the Supreme Court of
Pennsylvania. See 42 Pa.C.S.A. § 9545(b)(1)(iii).
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Judgment Entered.
J seph D. Seletyn, Es .
Prothonotary
Date: 5/5/2017
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