J-S52031-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LEON CHARLES TADYCH :
:
Appellant : No. 179 MDA 2017
Appeal from the PCRA Order December 29, 2016
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0000471-2013,
CP-36-CR-0001604-2013
BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED AUGUST 25, 2017
Appellant, Leon Charles Tadych, appeals pro se from the order of the
Lancaster County Court of Common Pleas, which dismissed as untimely his
pro se second petition filed under the Post Conviction Relief Act (“PCRA”), at
42 Pa.C.S.A. §§ 9541-9546. On June 6, 2013, Appellant entered a
negotiated guilty plea to statutory sexual assault, unlawful contact with a
minor, intimidation of a witness, and three counts each of involuntary
deviate sexual intercourse and corruption of minors. The court immediately
sentenced Appellant to 12 to 24 years’ imprisonment, which included a
mandatory minimum sentence of 10 years’ imprisonment per 42 Pa.C.S.A. §
9718 (offenses against infant persons). Appellant did not seek direct review.
On February 4, 2014, Appellant filed his first PCRA petition, which was
unsuccessful.
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Appellant filed his second, current pro se PCRA petition on August 22,
2016, claiming, inter alia, for the first time that his sentence was illegal
under Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186
L.Ed.2d 314 (2013) and Commonwealth v. Wolfe, ___ Pa. ___, 140 A.3d
651 (2016). The PCRA court appointed counsel, who filed a motion to
withdraw and Turner/Finley1 no-merit letter on November 3, 2016. The
PCRA court issued Rule 907 notice on November 23, 2016, permitted
counsel to withdraw, and denied relief on December 29, 2016. Appellant
timely filed a pro se notice of appeal on January 17, 2017. On January 23,
2017, the court ordered Appellant to file a concise statement per Pa.R.A.P.
1925(b). Appellant timely complied on February 9, 2017.
The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A PCRA
petition, including a second or subsequent petition, shall be filed within one
year of the date the underlying judgment of sentence becomes final. 42
Pa.C.S.A. § 9545(b)(1). A judgment of sentence 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 the review.” 42 Pa.C.S.A. § 9545(b)(3). The
statutory exceptions to the PCRA time-bar allow for very limited
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1
Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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circumstances which excuse the late filing of a petition; a petitioner
asserting a timeliness exception must file a petition within 60 days of when
the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(1-2). When
asserting the newly created constitutional right exception under Section
9545(b)(1)(iii), “a petitioner must prove that there is a ‘new’ constitutional
right and that the right ‘has been held’ by that court to apply retroactively.”
Commonwealth v. Chambers, 35 A.3d 34, 41 (Pa.Super. 2011), appeal
denied, 616 Pa. 625, 46 A.3d 715 (2012). Under the Section 9545(b)(1)(iii)
exception, the 60-day rule runs from the filing date of the cited decision.
Commonwealth v. Secreti, 134 A.3d 77, 80 (Pa.Super. 2016).
Instantly, Appellant’s judgment of sentence became final on or about
July 6, 2013, upon expiration of the 30 days for filing a direct appeal with
this Court. See Pa.R.A.P. 903(a). Appellant filed the current pro se PCRA
petition on August 22, 2016, which is patently untimely. See 42 Pa.C.S.A. §
9545(b)(1). Appellant attempts to invoke the “new constitutional right”
exception, citing Alleyne/Wolfe; these cases do not serve as exceptions to
the PCRA time-bar under these circumstances. See Commonwealth v.
Miller, 102 A.3d 988 (Pa.Super. 2014) (holding that even if Alleyne
announced new constitutional right, neither our Supreme Court nor United
States Supreme Court has held Alleyne and its progeny apply retroactively,
which is fatal to appellant’s attempt to satisfy “new constitutional right”
exception to timeliness requirements of PCRA). Therefore, Appellant’s
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petition remains time-barred, and the PCRA court lacked jurisdiction to
review it.2 Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2017
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2
Appellant baldly asserts the “governmental interference” statutory
exception at Section 9545(b)(1)(i) excuses the untimeliness of his PCRA
petition because the Pennsylvania legislature neglected its duty and passed
Section 9718, which was unconstitutional. Appellant cites no relevant law to
support this proposition. To the extent Appellant attempts to invoke the
“new facts” statutory timeliness exception to the PCRA time bar at Section
9545(b)(1)(ii), the Alleyne decision and its Pennsylvania progeny do not
constitute “new facts” under Section 9545(b)(1)(ii). See Commonwealth
v. Watts, 611 Pa. 80, 23 A.3d 980 (2011) (stating judicial determinations
are not “facts” within meaning of Section 9545(b)(1)(ii)). Appellant also
avers he satisfied the 60-day rule because he filed the current PCRA petition
within 60 days of the Wolfe decision; however, Wolfe did not announce a
new constitutional right, and Appellant filed the current petition more than
60 days after Alleyne, which was decided on June 17, 2013. Therefore,
Appellant also failed the 60-day rule. See 42 Pa.C.S.A. § 9545(b)(2);
Secreti, supra. Further, Appellant’s ineffective assistance of prior counsel
claims do not qualify as exceptions to the statutory timeliness requirement.
See Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 753 A.2d 780
(2000).
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