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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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(unpublished memorandum).1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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