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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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:


____________________________________________


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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