J-S39020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

ROBERT HRUSOVSKY

                            Appellant                  No. 2339 EDA 2014


                    Appeal from the PCRA Order July 3, 2014
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0000510-1995
                            CP-39-CR-0001334-1995


BEFORE: BOWES, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                         FILED SEPTEMBER 28, 2015

       Robert Hrusovsky appeals pro se from the order entered on July 3,

2014, in the Lehigh County Court of Common Pleas, which dismissed his first

petition for collateral relief,1 that was styled as a “pro se motion to vacate

sentence.”     Hrusovsky seeks relief from the judgment of sentence of an

aggregate 16 to 48 years’ imprisonment imposed on June 20, 1996,

following his guilty plea to one count of involuntary deviate sexual

intercourse (IDSI) (victim less than 16 years old)2 at Docket No. CP-39-CR-

510-1995, and two counts of IDSI and one count of sexual abuse of

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1
    See Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. § 3123(5).
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children3 at Docket No. CP-39-CR-1334-1995.         In dismissing the motion

without a hearing, the PCRA court found that Hrusovsky failed to raise any

material fact entitling him to relief and the petition was untimely filed. See

Order, 5/27/2012. For the reasons that follow, we reverse the PCRA court’s

order and remand the matter for appointment of counsel.

        Hrusovsky’s convictions stem from the sexual assault of the eight-

year-old victim that occurred multiple times in 1993 and 1994.4 Hrusovsky

also took indecent photographs of the victim at his photography studio.5 As

stated above, he pled guilty and was sentenced on June 20, 1996.

Specifically, the court sentenced him to three consecutive terms of five to 15

years’ incarceration for the IDSI counts, and a consecutive term of one to

three years’ imprisonment for the sexual abuse conviction. These sentences

were to run concurrently to a sentence imposed against Hrusovsky in

Northampton County.6

        The docket reflects that the case was inactive until January 27, 2014,

when Hrusovsky filed a pro se motion for transcription.     The court denied

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3
    18 Pa.C.S. §§ 3123(5) and 6312(b), respectively.
4
   See Criminal Complaint, 2/16/1995 (Docket No. CP-39-CR-510-1995);
Criminal Complaint, 3/21/1995 (Docket No. CP-39-CR-1334-1995).
5
    See Criminal Complaint, 3/21/1995 (Docket No. CP-39-CR-1334-1995).
6
   Our cursory review of the record did not reveal the circumstances and
sentence of the Northampton County case.



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that motion on February 11, 2014.          Subsequently, on May 8, 2014,

Hrusovsky filed a non-titled document, which he attempted to style as a

motion seeking relief from an illegal sentence. Specifically, he raised claims

challenging the legality of his sentence and the failure to join his Lehigh

County cases with the case in Northampton County.

      On May 27, 2014, in its Pa.R.Crim.P. 907 notice, the PCRA court

notified Hrusovsky of its intention to treat the filing as a PCRA petition, and

to dismiss the petition without a hearing.     See Order, 5/27/2014.       In a

footnote, the court explained its rationale for dismissing the case:

              Although attempting to style his request for a relief as a
      challenge to legality of sentence imposed after guilty plea
      entered in 1996, it appears [Hrusovsky] concedes, as he must,
      that if the conviction for which he is serving is valid, then the
      sentence falls within the permissible range. What [Hrusovsky]
      attempts to assert, however, is a belated claim that the
      prosecution for the subject offense is infirm as violative of the
      double-jeopardy related protections codified at 18 Pa.C.S. § 110.
      Such a claim is nonetheless cognizable under, and subject to the
      strictures of, the [PCRA]. See, e.g., Com. v. Taylor, 65 A.3d 462
      (Pa. Super. 2013).       And [Hrusovsky] offers no explanation
      sufficient to satisfy the time bar imposed by the PCRA. See 42
      Pa.C.S. § 9545 and Pa.R.Crim.P. No. 901 (absent delineated
      exceptions, petition must be filed within one year of date
      judgment becomes final). Accordingly, the within order will
      issue, stating the intent to dismiss the untimely petitions for
      relief.




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Order, 5/27/2014, at 1, n.1. Hrusovsky filed a pro se response on July 1,

2014. Two days later, the court dismissed Hrusovsky’s PCRA petition as

untimely. Hrusovsky then filed the present appeal.7

       Hrusovsky raises the following issues for our review and consideration:

          I.     Did the [PCRA] court commit an err [sic] of law by
                 failing to consolidate criminal offenses in one county
                 with the offenses in the other county?

          II.    Did the [PCRA] court err by imposing a mandatory
                 minimum sentence in violation of unconstitutional
                 sentence scheme?

Hrusovsky’s Brief at 4.

       Before we may address the merits of Hrusovsky’s appeal, we must first

address the status of his PCRA petition. While Hrusovsky’s petition appears

to have been untimely filed,8 the record reveals this is his first petition.


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7
   On August 11, 2014, the PCRA court ordered Hrusovsky to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Hrusovsky filed a concise statement on September 3, 2014, two days past
the deadline. Nevertheless, the PCRA court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on August 29, 2014.
8
   A PCRA petition must be filed within one year of the date the underlying
judgment becomes final. 42 Pa.C.S. § 9545(b)(1). A judgment 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 review.” 42 Pa.C.S. § 9545(b)(3).
Accordingly, Hrusovsky’s sentence became final on July 22, 1996, 30 days
after the period to file a direct appeal with this Court expired. See Pa.R.A.P.
903(a). Therefore, pursuant to Section 9545(b)(1), Hrusovsky had one year
from the date his judgment of sentence became final to file a PCRA petition.
See Commonwealth v. Taylor, 67 A.3d 1245 (Pa. 2013), cert. denied, 134
(Footnote Continued Next Page)


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Furthermore, the PCRA court acknowledges that his claim of double jeopardy

is cognizable under the PCRA. See Order, 5/27/2014, at 1, n.1.

      “Pursuant to the rules of criminal procedure and interpretive case law,

a criminal defendant has a right to representation of counsel for purposes of

litigating a first PCRA petition through the entire appellate process.”

Commonwealth v. Robinson, 970 A.2d 455, 457 (Pa. Super. 2009)

(citations   omitted);        see     also        Pa.R.Crim.P.   904(C)   (“[W]hen    an

unrepresented defendant satisfies the judge that the defendant is unable to

afford or otherwise procure counsel, the judge shall appoint counsel to

represent the defendant on the defendant’s first petition for post-conviction

collateral relief.”).

      Because the PCRA court failed to appoint counsel, we reverse the July

3, 2014, order denying him relief and remand for a determination of

indigence and, if Hrusovsky is found to be indigent, for the appointment of

counsel.9 See Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa.

Super. 2011), appeal denied, 863 A.2d 1144 (Pa. 2004) (treating appellant’s

pro se motion challenging his guilty plea as a PCRA petition “regardless of

the manner in which the petition is titled”; concluding appellant was entitled

                        _______________________
(Footnote Continued)

S. Ct. 2695 (U.S. 2014). The instant petition was not filed until May 8,
2014, making it patently untimely.
9
  This Court may sua sponte direct the appointment of counsel.                       See
Commonwealth v. Stossel, 17 A.3d 1286 (Pa. Super. 2011).



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to counsel on his first PCRA petition); see also Commonwealth v. Smith,

818 A.2d 494, 501 (Pa. 2003) (“[A]n indigent first-time PCRA petitioner is

entitled to the assistance of counsel, whether or not the PCRA court

ultimately concludes that the PCRA petition is untimely.”).10

       We direct PCRA counsel to determine if Hrusovsky can aver an

exception to the PCRA time limits and examine if there are other issues that

may be of merit if Hrusovsky’s petition is timely.    We note PCRA counsel

may elect to file 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).

       Order reversed. Case remanded with instructions consistent with this

memorandum. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/28/2015


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10
     We note in its brief, the Commonwealth acknowledges the legal
precedence and states it does not oppose a remand for the appointment of
counsel. See Commonwealth’s Brief at 4-7.



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