Opinion
J. S59036/15 No. 482 WDA 2015
09-30-2015
COMMONWEALTH OF PENNSYLVANIA, Appellee v. JOHN A. DUZICKY, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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.:
Former Justice specially assigned to the Superior Court.
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 Act ("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 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 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. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/2015
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