J-S60024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

THEODORE D. PRZYBYSZEWSKI, JR.

                            Appellant                No. 3127 EDA 2015


                Appeal from the PCRA Order September 29, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0300701-1985


BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                              FILED AUGUST 26, 2016

        Theodore D. Przybyszewski appeals, pro se, from the order entered

September 29, 2015, in the Court of Common Pleas of Philadelphia County,

dismissing as untimely his serial petition, filed pursuant to the Pennsylvania

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541–9546. Przybyszewski

seeks relief from the judgment of sentence to serve a term of life

imprisonment, imposed on September 9, 1987.        Przybyszewski contends his

sentence is unconstitutional and illegal, and cites Commonwealth v.

Hopkins, 117 A.3d 247 (Pa. 2015) in support of his claim. 1 Based upon the

following, we affirm on the basis of the PCRA court’s sound opinion.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 Preliminarily, we note that this Court denied Przybyszewski’s application to
exceed the word count, by Order entered in this Court on December 23,
(Footnote Continued Next Page)
J-S60024-16



      The PCRA court has aptly summarized the procedural history in its

opinion, and therefore there is no need to restate the background of this

case. See PCRA Court Opinion, 9/29/2015, at 1–3 (unnumbered).

      Our standard of review is well established:

      This Court’s standard of review regarding a PCRA court’s order is
      whether the determination of the PCRA court is supported by the
      evidence of record and is free of legal error. Great deference is
      granted to the findings of the PCRA court, and these findings will
      not be disturbed unless they have no support in the
      certified record.

Commonwealth v. Turpin, 87 A.3d 384 (Pa. Super. 2013) (citation

omitted).

      The Honorable Jeffrey P. Minehart has provided a thorough analysis in

support of his dismissal of the instant PCRA petition, which we adopt as




                       _______________________
(Footnote Continued)

2015.      Nevertheless,     Przybyszewski    ignored  this   Court’s    order.
Przybyszewski’s brief on appeal is 88 pages and appears to exceed the word
limit permitted by Rule 2135(a)(1) (“principal brief shall not exceed 14,000
words”). Additionally, Przybyszewski has failed to provide the necessary
certification of compliance with the word count. See Pa.R.A.P. 2135(d)
(where a principal brief exceeds 30 pages, the party must include a
certification that the brief complies with the 14,000 word count limit).

      Pursuant to the Rules of Appellate Procedure, this Court has the
discretion to quash or dismiss an appeal when the defects in an appellant’s
brief or reproduced record are substantial. See Pa.R.A.P. 2101. We decline
the opportunity to apply Rule 2101.         However, we will not consider
Przybyszewski’s brief beyond the thirtieth page, nor will we consider
Przybyszewski’s reply brief beyond the fifteenth page.




                                            -2-
J-S60024-16


dispositive of this appeal.2       See PCRA Court Opinion, 9/29/2015, at 3–6

(unnumbered) (explaining: (1) Przybyszewski argues he is entitled to have

his life sentence vacated because it was imposed pursuant to a statute of

the type deemed unconstitutional in Hopkins (invalidating the drug-free

school zone mandatory minimum sentence, 18 Pa.C.S. § 6317), based on

the holding in of Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013),

wherein the United States Supreme Court held “that any fact that increases

the mandatory minimum is an element [of the crime] that must be

submitted to the jury”; (2) Przybyszewski’s petition does not meet the

exception for a newly recognized constitutional right [42 Pa.C.S. §

9545(b)(1)(iii)] because the Hopkins ruling is based on the holding of

Alleyne, and in Hopkins the Supreme Court did not indicate that either of

those decisions applies retroactively; (3) Commonwealth v. Miller, 102

A.3d 988 (Pa. Super. 2014), made clear that claims based on Alleyne do

not fit within the exception set forth at subsection 9545(b)(1)(iii); (4) In any

event, Alleyne does not apply here, since Przybyszewski was sentenced

pursuant to 18 Pa.C.S. § 1102(a)(1); and (5) Przybyszewski’s failure to

properly invoke an exception to the timeliness requirements of the PCRA



____________________________________________


2
  The PCRA court did not order Przybyszewski to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal.




                                           -3-
J-S60024-16


requires    the    PCRA     court    to   dismiss   Przybyszewski’s   petition). 3,   4



Accordingly, we affirm.

       Order affirmed.5 All outstanding motions are denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/26/2016

____________________________________________



3
  We add that Przybyszewski’s reliance on 42 Pa.C.S. § 9545(b)(1)(ii), which
provides an exception to the timeliness requirements of the PCRA where “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,” also fails.
Contrary to the argument of Przybyszewski, the decision in Hopkins did not
create a new “fact” that “his sentence became unconstitutional [and]
therefore illegal[.]” Przybyszewski’s Brief at 6. Rather, in Hopkins, which
involved a direct appeal, the Supreme Court of Pennsylvania found that
pursuant to Alleyne, 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.
4
  Recently, in Commonwealth v. Washington, ___ A.3d ___, ___, 2016
WL 3909088, at *8 (Pa. July 19, 2016), the Pennsylvania Supreme Court
definitively held that “Alleyne does not apply retroactively to cases pending
on collateral review.” The Court found that Alleyne did not meet the criteria
for the retroactive application of a new constitutional law outlined in Teague
v. Lane, 489 U.S. 288 (1989) (plurality). Moreover, the Court declined to
“recognize an independent state-level retroactivity jurisprudence grounded
on fairness considerations.” Id. at ___, 2016 WL 3909088, at *7.
5
  In the event of further proceedings, the parties are directed to attached a
copy of the PCRA court’s September 29, 2015, opinion.



                                           -4-
                                                                                          Circulated 08/02/2016 02:07 PM




                               IN THE COURT OF COMMON PLEAS
                         FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                              TRIAL DIVISION-CRIMINAL SECTION

    COMMONWEALTH          OF PEJ\TNSYLVANIA




         \\\\\\\\\I\\\\\\\\\\\\\\\
                7352580671

THEODORE PRZYBYSZEWSKI
                                                                               CP-5I-CR-300701-i       985
                                                                                       3/;)..<;f- [;~bit"2-01) -

                                     MEMORANDUM             AND ORDER


MINEHART,J                                                                     January 8, 2014




        This Court hereby dismisses the instant Post Conviction Relief Act Petition filed on
                                                        1
August 25, 2015 for the reasons set forth below.

                              I.       PROCEDURAL HISTORY

        Petitioner was arrested and charged with murder and related offenses for an incident

which occurred in late December 1982. Prior to trial, a plea bargain was reached in which the

Commonwealth stated that the death penalty would not be sought in exchange for a guilty plea.

On September 9, l 987, Petitioner pied guilty to first degree murder and possession of an

instrument of crime before the Honorable George J. Ivins, and was sentenced to life

imprisonment.     Petitioner moved to withdraw his guilty plea, but his motion was denied at a

hearing on September 23, 1987. Petitioner appealed the judgment of sentence, and the Superior
I
  This memorandum and order has been issued more than twenty days after Petitioner was served with notice of the
forthcoming dismissal of his Post Conviction Relief Act petition pursuant to Pa. R.Crim.P. 907.
 Court dismissed the appeal on February l l , 1988 for failure of court appointed counsel to file a

 brief.

             On October 19, 1988, Petitioner filed a petition under the Post Conviction Hearing Act.

 Counsel was appointed, and based upon submission of a "no merit" letter pursuant to

 Turner/Finley, 2 Petitioner's petition was dismissed as frivolous on October I 0, 1991.                   Petitioner

 filed an appeal, and the Superior Court affirmed the dismissal on August 13, 1992. Allocatur

 was denied on April 15, 1993 by the Pennsylvania Supreme Court.

            On February 15, 1995, Petitioner filed a petition pursuant to the Post Conviction Relief

 Act. Counsel was appointed, and after review, a "no merit" letter pursuant to Turner/Finley was

 filed. Petitioner's petition was dismissed based on Turner/Finley on October 26, 1995. Petitioner

 filed an appeal to the Superior Court, but the appeal was withdrawn and discontinued on March

 20, 1996.

            Petitioner filed another PCRA petition on February 3, 2010. A copious number of

 amended petitions and supplemental filings were thereafter submitted. After conducting an

 extensive and exhaustive review of the record and applicable case law, this Court determined

 that Petitioner's     petition for post conviction collateral relief was untimely filed and dismissed it.

 Petitioner filed an appeal from the order denying him PCRA relief and on June 23, 2015, the

. Superior Court issued a memorandum and order affirming this Court's order. (Commonwealth

 v. Prsybyszewski,       576 EDA 2014). Petitioner did not thereafter file a petition for allowance of

 appeal.




 2
     Co111111omvea/1h v. Turner, 544 A.2d 927 (Pa. l 988) and Commonwealth v. Finley, 550 A.2d 2 I 4 (Pa. Super. l9SS).
         On August 25, 2015, Petitioner          latest PCRA petition was filed.3 On August 31, 2015,

this Court sent Petitioner a Pa.R.Crim.P.         907 notice. Defendant thereafter filed a response to the

notice. Upon reviewing Petitioner's           original prose petition as well as his Rule 907 response, this

Court hereby dismisses his prose petition because it is clear that it is untimely and that none of

the three exceptions to the one year f I ing dead Ii ne of the PCRA applies to excuse the late tiling

of his prose petition.

                                        II.       DISCUSSION

         Petitioner argues that he is entitled to have his life sentence vacated because it was

i 111 posed pursuant to a statute of a type deemed uncousti tu ti on al by the Pennsylvania          Supreme

Court in Commonwealth         v. Hcmkins, 117 A.3d 247 (Pa. 2015), wherein the Supreme Court held

that the minimum sentencing statute set forth at 18 Pa.C.S. § 6317 (the drug-free school zone mandatory

minimum sentencing statute), and by imp I ication all other similarly worded mandatory sentencing

provisions, is invalid in light of the holding of Alleyne v. United States, 133 S. Ct. 215 l (2013), wherein

the United States Supreme Court overruled Harris v. United States, 536 U.S. 545 (2002), and held "that

any fact that increases the mandatory minimum is an element [of the crime] that must be submitted to the

jury." Alleyne, supra at 21 55 (internal quotation marks omitted).

        At the outset, Petitioner's     conviction became final on March 15 J 988, thirty days after the

Superior Court dismissed his appeal.            After a conviction becomes final, a petitioner has one year

to file a post conviction petition."     Therefore, Petitioner's    most recent petition is patently

untimely unless it properly invokes one of the enumerated exceptions.                The three exceptions to

the one-year limitation as stated in 42 Pa.C.S. §9545 (b)(l)(i)-(iii)         are:


3
  Although Petitioner's prose petition was docketed on August 25, 2015, it is clear that it was mailed on or about
August 12, 2015, the date listed on the petition. Pursuant to the Prisoner Mailbox Rule, this Court considered the
petition under review herein as filed on or about August 12, 2015.       ·
4
  Because Petitioner's conviction became final before the amendments to the PCRA took effect, Petitioner had until
January 16, 1997, to file a timely petition. See Commonwealth v, Crider, 73 5 A.2d 730, 732 (Pa. Su per. 1998).
         (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.

        In his present petition, which was facially untimely, Petitioner has alleged a violation of a

constitutional right recognized after the expiration of the one-year ti me-bar and which has been held by

the United States or Pennsylvania Supreme Comito apply retroactively.      In support of his newly

recognized constitutional right claim, as noted above, Petitioner relies on the Hopkins case, which was

decided June 15, 2015. Petitioner, who filed his most recent PCRA petition on or about August 12, 2015,

raising a Hopkins claim, met the sixty day deadline for filing claims pursuant to the newly recognized

constitutional right exception in section 9545 of the PCRA.

        While Petitioner's most recent filing containing the Hopkins issue met the sixty day

deadline because he filed his petition within sixty of June 15, 2015, the day Hopkins was filed,

his petition was still untimely filed and properly dismissed because the Hopkins ruling is based

on the holding of Alleyne and in Hopkins, the Supreme Court did not indicate that either of those

decisions applies retroactively.   In Commonwealth      v, Miller,   102 A.3d 988 (Pa. Super. 2014), the

Superior Court recently made clear that claims based upon Alleyne do not fit within the

exception set forth subsection 9545(b)(l)(iii)    because neither the United States Supreme Court

nor the Pennsylvania Supreme Court has held that Alleyne applies retroactively in cases where

the judgment of sentence was final at the time Alleyne was decided. It does not matter that

Petitioner's claim implicates the legality of his sentence, because although claims alleging that a

sentence is illegal are technically not waivable, a Court may not consider them unless it has a
jurisdiction to do so. In Commonwealth v. Seskey, 86 A.3d 237 (Pa. Super. 2014),the Court stated

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." Id. at 242.

        Instantly, Petitioner's judgment of sentence became final in 1988, well prior to the date

Alleyne and Hopkins were issued. Thus, Petitioner failed to satisfy the new constitutional     right

exception to the PCRA 's time-bar.

        Even had Petitioner's petition been timely filed no relief would have been due him

because a review of the applicable law unequivocally demonstrates that Alleyne did not apply

here. Petitioner was sentenced pursuant to 18 Pa.C.S. §1102 (a)(l), which provides that "a

person who has been convicted of a murder of the first degree or of murder of a law enforcement

officer of the first degree shall be sentenced to death or to a term of life imprisonment in

accordance with 42 Pa.C.S. § 9711 (relating to sentencing procedure for murder of the first

degree)." It is clear from the foregoing that by pleading guilty to first-degree murder petitioner

provided the fact necessary for the foregoing statute to apply. Except in capital cases, the verdict

itself suffices to trigger the application of the section 1102 and no finding other than the verdict

itself, which is the product of a finding beyond a reasonable doubt, is necessary to impose the

sentence Petitioner received as is the case with respect to the myriad statutes deemed

unconstitutional under Alleyne. See e.g. Commonwealth v. Newman, 99 A.3d 86 (Pa. Super.

2014) (en bane) (holding that 42 Pa.C.S § 9712. I (sentences for certain drug offenses committed

with firearms) is no longer constitutional under Alleyne because it "permits the trial court, as

opposed to the jury, to increase a defendant's minimum sentence based upon a preponderance of

the evidence that the defendant was dealing drugs and possessed a firearm, or that a firearm was
in close proximity to the drugs. "); Commonwealth v. Valentine, IO I A.3d 80 I (Pa. Super. 2014)

(extending Alleyne and Newman to Sections 9712 and 9713 of Title 42 of Purdons and holding

those sections are unconstitutional because they permit automatic increase of defendant's

sentence based on preponderance of evidence standard).

       In sum, Petitioner's failure to properly invoke an exception to the timeliness requirements

of the Post Conviction Relief Act requires this Court to dismiss Petitioner's petition.

       Therefore, the following order is entered:
                                            ORDER

         AND NOW, this 29th day of September, 2015, pursuant to 42 Pa.C.S. § 9545(b) (as

amended, effective January 16, l 996), it is hereby, ORDERED AND DECREED that

PETITIONER'S petition for post-conviction relief is DISMISSED AS UNTIMELY FILED.5



                                                              BYTHEF1Lr
                                                              JEFFREY P. MINEHART, J.




     5
         Petitioner may proceed prose or with retained counsel; no new counsel is to be appointed.
