J. S59036/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
JOHN A. DUZICKY,                            :
                                            :
                          Appellant         :     No. 482 WDA 2015

                  Appeal from the PCRA Order March 4, 2015
                In the Court of Common Pleas of Beaver County
               Criminal Division No(s).: CP-04-CR-0002004-2009

BEFORE: BOWES, DONOHUE, and FITZGERALD,* JJ.

JUDGMENT ORDER BY FITZGERALD, J.:               FILED SEPTEMBER 30, 2015

        Pro se Appellant, John A. Duzicky, appeals from the order entered in

the Beaver County Court of Common Pleas dismissing his second Post

Conviction Relief Act1 (“PCRA”) petition. Appellant contends his sentence is

illegal under Alleyne v. United States, 133 S. Ct. 2151 (2013). We affirm.

         We adopt the facts and procedural history set forth by the PCRA

court. See PCRA Ct. Op., 3/4/15, at 2-3. On January 9, 2015, Appellant

filed the instant second petition.     On January 21, 2015, the PCRA court

issued a Pa.R.Crim.P. 907 notice of intent to dismiss, and Appellant filed his




*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
J.S59036/15


pro se response on February 8, 2015. The PCRA court dismissed Appellant’s

petition on March 4, 2015, and Appellant timely appealed.

      Before addressing the merits of Appellant’s claims, we examine

whether we have jurisdiction to entertain the underlying PCRA petition. See

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999). “Our standard of

review of a PCRA court’s dismissal of a PCRA petition is limited to examining

whether the PCRA court’s determination is supported by the evidence of

record and free of legal error.” Commonwealth v. Wilson, 824 A.2d 331,

333 (Pa. Super. 2003) (en banc) (citation omitted). A PCRA petition “must

normally be filed within one year of the date the judgment becomes final . . .

unless one of the exceptions in § 9545(b)(1)(i)-(iii) applies and the petition

is filed within 60 days of the date the claim could have been presented.”

Commonwealth v. Copenhefer, 941 A.2d 646, 648 (Pa. 2007) (citations

and footnote omitted).

      Instantly, Appellant’s judgment of sentence became final on August 5,

2011; Appellant filed the instant serial petition on January 9, 2015, over

three years later.   Thus, this Court must discern whether the PCRA court

erred by holding Appellant did not plead and prove one of the three

timeliness exceptions.     See 42 Pa.C.S. § 9545(b)(1)(i)-(iii); Copenhefer,

941 A.2d at 648.         In this case, Appellant has alleged that Alleyne

established a new constitutional right that applies retroactively under

Section 9545(b)(1)(iii).     “[N]either our Supreme Court, nor the United



                                      -2-
J.S59036/15


States Supreme Court has held that Alleyne is to be applied retroactively to

cases     in   which   the   judgment    of   sentence   had   become   final.”

Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014).

Appellant’s judgment of sentence became final in 2011, and thus we agree

with the PCRA court’s determination that Appellant did not properly invoke

any one of the three timeliness exceptions. See Copenhefer, 941 A.2d at

648; Fahy, 737 A.2d at 223. Thus, the PCRA court lacked jurisdiction. See

Fahy, 737 A.2d at 223.       Having discerned no error of law, we affirm the

order below. See Wilson, 824 A.2d at 333.

        Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/30/2015




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          IN THE COURT OF COIVfMONPLEAS OF BEA VER COUNTY

                               PENNSYLVANIA

                                CRIMINAL DIVISION

 COMMONVfEALTH OF

        PENNSYLVANIA


              vs.                                                  NO. 2004 of2009



 JOHN A. DUZICKY


                              OPINION AND ORDER



H. KNAFELC, J.                                                      March 4t\ 2015


       Petitioner, John A. Duzicky, alleges that counsel was ineffective for failing

to raise the constitutionality of his sentence during appeal of his first post-

conviction petition. Petitioner asserts in his response to this Court's Notice of

Intent to Dismiss that his Petition is timely filed pursuant to the new decisional law

exception of the Post-Conviction Relief Act (PCRA). His argument is without

merit. Because this petition is untimely, this Court lacks jurisdiction to address

Petitioner's substantive claims. Petitioner's response presents no genuine issue

concerning any material fact and Petitioner is not entitled to post-conviction

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  collateral relief. See Pa. R. Crim. P. 907 ( 1). After a review of Petitioner's response

  and the record, the petition for post-conviction collateral relief is DISIVUSSED

  FOR \VANT OF JURISDICTION.

                          I.     PROCEDURAL HISTORY

        Petitioner's charges stemmed from his participation with nine co-defendants

 in a marijuana/cocaine distribution operation in Allegheny and Beaver counties

 from January I, 2006, through June I, 2009. On October 25, 2010, he pied guilty

 to two counts of corrupt organizations, two counts of criminal attempt, and four

 counts of delivery of a controlled substance. On July 6, 2011, the trial court

 sentenced Petitioner to term of imprisomnent of between six and twelve years.

 Petitioner did not file a post-sentence motion or direct appeal from the judgment of

 sentence.

       On March 5, 2012, Petitioner filed a prose motion for post-conviction relief.

Through appointed counsel, Petitioner filed an amended motion on October 1,

2012. That post-conviction court denied Petitioner's motion on May 30, 2013. On

February 20, 2014, the Pennsylvania Superior Court affirmed the lower court's

decision. Petitioner filed a second petition for post-conviction relief on January 9,

2015. Finding that petition lacking in any genuine issue of material fact on which

relief could be granted, this Court provided Petitioner with notice of its intent to

dismiss on January 21, 2015. Pursuant to Pennsylvania Rule of Criminal Procedure


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  907(1), petitioner was given twenty days to respond. On January 29, 2015,

  Petitioner filed a timely response to the proposed dismissal.

                                 II.    DISCUSSION

        Petitioner asserts that this Court erred in holding that it lacks jurisdiction to

 review the merits of his claim because it is untimely under the PCRA. He argues

 that his judgment of sentence was not final when the United States Supreme Court

 issued the Alleyne decision. His argument lacks merit. Petitioner's judgment was

 final and he is outside the time limitation to file a PCRA petition. He has failed to

 plead and prove any applicable exception under the statute. The petition is

 untimely, and must be dismissed because this Court does not have jurisdiction to

 review its merits.

       A.     The Time Restrictions in the PCRA Statute are Jurisdictional in
              Nature, and Preclude Consideration of the Merits of any Untimely
              PCRA Petition by a Post-Conviction Comt.

       The threshold inquiry in reviewing a PCRA petition is whether the Court has

jurisdiction to address the merits of the petition. See Commonwealth v. Fahy, 737

A.2d 214, 217 (Pa. 1999). In order for this Court to have jurisdiction, the petition

must have been filed in compliance with the statutorily defined time limitations.

See id. at 218. These requirements are mandatory, and may not be altered or

disregarded to reach the merits of the claims raised in the petition. Commonwealth




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                                                                        Circulated 09/02/2015 09:27 AM




  v. Cintora, 69 A.3d 759, 762 (Pa. Super. Ct. 2013). This Court has no jurisdiction

  to hear an untimely PCRA petition. Ibid.

        B.     The Petition Sub Judice is Untimely because it ,:vas Filed more than
               One-Year Following the Date Petitioner's Judgment became Final and
               because Petitioner has Failed to Plead and Prove that any of the
               Statutmy Exceptions Apply to his Case.

        A petition is timely, thus conferring jurisdiction, in two situations. The first

 is where the petition is filed within one year of the date that judgment became

 final. 42 Pa. Cons. Stat. § 9545(b )(1). This is true of any petition, including a

 second or subsequent petition. Ibid. The second situation applies when a petition is

 filed later than one year following final judgment. In that event, a petitioner has the

 burden of pleading and proving that one of the statutory exceptions applies.

 Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012).

              1.    General Rule: Petitions must be Filed within One Year of
                    Final Judgment to be Timely

       In general, any petition, including a second or subsequent petition, must be

filed within one year of the date that Petitioner's judgment of sentence became

final. A judgment     is deemed final for purposes         of post-conviction      relief

immediately upon expiration of the time for seeking direct review. Commonwealth

v. Callahan, 101 A.3d 118, 122 (Pa. Super. Ct. 2014). "Direct review" includes

review as a right before the Pennsylvania Superior Court and the discretionary

review of the Pennsylvania Supreme Court and the United States Supreme Court.


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      Commonweath v. Liebensperger,       904 A.2d 40, 45 (Pa. Super. Ct. 2006). In

      contrast, collateral proceedings occur after the conclusion of direct review. In

     fixing the date on which a judgment of sentence becomes final, the PCRA does not

     refer to the conclusion of collateral review; rather, the only relevant timeframe is

     the expiration of the time for seeking direct review. Callahan, 10 I A.3d at 122.

     Where a defendant fails to file a direct appeal from conviction, his judgment of

     sentence becomes final thirty days after imposition of the sentence. Commonwealth

     v. Jerman, 762 A.2d 366, 368 (Pa. Super. Ct. 2000).

           Petitioner's judgment became final on August 5, 2011. Petitioner did not file

    post-trial motions or an appeal following sentence. Where a defendant fails to file a

    direct appeal with the Superior Court of Pennsylvania following sentence, his

    judgment   will become final thirty days after the imposition          of sentence.

    Commonwealth v. Brown, 767 A.2d 576, 579 n.2 (Pa. Super. Ct. 2001). Petitioner

    was sentenced on July 6, 2011. Because no appeal or post-trial motions were taken,

    the thirty day rule applies. Thirty days out from sentencing date is August 5, 2011,

and that date is the date on which Petitioner's appellate rights expired. In order to

be timely under section 9545(b )(I), Petitioner would have had to file this PCRA

petition before August 6, 2012, one year after his judgment became final. 1

1
    As of August 5, 2011, Petitioner had one year in which to file a PCRA petition,

including a second or subsequent PCRA petition. One year from August 5, 2011,

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                                                                          Circulated 09/02/2015 09:27 AM




     Petitioner filed the PCRA petition sub judice on January 9, 2015, more than two

     years past the timeliness deadline in the PCRA.2 The petition is therefore untimely

     under section 9545(b)(l). In order for this Court to have jurisdiction to entertain




     falls on Saturday, August 5, 2012. Because the last day of that one-year period fell

  on a Saturday, Petitioner had until Monday, August 6, 2012, to file his PCRA

 petition. See 1 Pa. C.S. § 1908 (describing the computation of time where the day

 of a given time period falls on a weekend or holiday); see also Commonwealth v.

 Callahan, 101 A.3d 118, 122 n.10 (Pa. Super. Ct. 2014).
 2
     Petitioner alleges that his judgment was not final because his post-conviction

 appeal was still pending. The pendency of an appeal of a collateral matter has no

 effect on the date on which a judgment becomes final. See Commonwealth v.

 Callahan, 101 A.3d 118, 122 (Pa. Super. Ct. 2014) (holding that "[i]n fixing the

date upon which a judgment of sentence becomes final, the PCRA does not refer to

the conclusion of collateral review or the time for appealing a collateral review

determination ....    [T]he plain language of the PCRA statute shows that a judgment

of sentence becomes final immediately upon expiration of the time for seeking

direct review, even if other collateral proceedings are still ongoing."). The only

date relevant to final judgment is the expiration of Petitioner's appellate right after

his failure to appeal his judgment of sentence.

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  the merits the petition, Petitioner must establish that one of the exceptions     listed in

  section 9545(b )(1 )(i)-(iii) applies.

                2.     Exceptions to the One-Year Rule

         The PCRA statute lists three exceptions to the one-year rule. An otherwise

  untimely petition may nevertheless be considered if the petition alleges and the

  petitioner proves that:

        (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;

       (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 provided in this section has been held by
       that court to apply retroactively.

       (2) Any petition invoking an exception provided in paragraph (I)
       shall be filed within 60 days of the date the claim could have been
       presented.

42 Pa. Cons. Stat. § 9545(b)(l)(i)-(iii),   (2); see also Commonwealth v. Fahy, 737

A.2d 214, 218 (Pa. 1999). Petitioner asserts that this Court has jurisdiction by

virtue of section 9545(b )( 1 )(iii), the new decisional law exception.

      The new decisional law exception provides that a post-conviction court may

entertain a post-conviction      relief petition where the right asserted is (1) a


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                                                                       Circulated 09/02/2015 09:27 AM




   constitutional right recognized by the United States Supreme Court or the

   Pennsylvania Supreme Court and (2) that right has been held by that court to apply

  retroactively. 42 Pa. C.S. § 9545(b )( I )(iii). A new rule of constitutional law is

  applied retroactively to cases on collateral review only where the United States

  Supreme Court or the Pennsylvania Supreme Court specifically holds it to be

  retroactively applicable to those cases. Commonwealth v. Miller, 102 A.3d 988,

  995 (Pa. Super. Ct. 2014); see also Commonwealth v. Phillips, 31 A.3d 317, 320

  (Pa. Super. Ct. 2011 ). Additionally, pursuant to section 9545(b )(2), the petition

 must be filed within sixty days of the date the claim could have been presented.

          Petitioner    claims that the new decisional     law exception    in section

 9545(b)(l)(iii)       makes his petition timely, therefore establishing this Court's

 jurisdiction.     His contention is inapposite. First, even assuming that Alleyne

 announced a new constitutional right, neither the Pennsylvania Supreme Court nor

the United States Supreme Court has held that Alleyne is to be applied retroactively

to cases in which the judgment of sentence had become final. Miller, 102 A.3d at

995. Here, Petitioner's judgment of sentence became final on August 5, 2011, and

he therefore cannot benefit from the United States Supreme Court's holding in

Alleyne. This petition is outside the scope of the new decisional law exception,

does nothing to help Petitioner overcome the requirement that PCRA petitions be

timely.


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                               Ill.    CONCLUSION

       Having failed to show that the petition is timely under either the general rule

or any of the exceptions, this Court has no jurisdiction to proceed to merits of

Petitioner's claim. This Court may not address the merits of the issues raised in a

PCRA petition if the petition was not timely filed. Commonwealth v. Jones, 54

A.3d 14, 17 (Pa. 2012). The petition for post-conviction relief is dismissed in

accordance with the following order.




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            IN THE COURT OF COMMON PLEAS OF BEA VER COUNTY

                                             PENNSYLVANIA

                                             CRIMINAL DIVISION

 COrvlMON\\TEALTH OF

           PENNSYLVANIA


                            vs.                                             NO. 2004 of 2009



JOHN A. DUZICKY


                                                     ORDER
H. KNAFELC, J.                                                               March                4th               2015
                                                                                                              '
       AND NOW, to wit, this                  4th   day of March, 2015, it is hereby ORDERED

AND DECREED that the petition for post-conviction relief is DISMISSED FOR

WANT OF JURISDICTION.




                                                     BY THE COURT:



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