Com. v. Lusick, D. ( 2016 )

J-S55013-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID LUSICK
Appellant No. 2160 EDA 2015
Appeal from the PCRA Order May 22, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0321881-1993,
CP-51-CR-100011-1992
BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 12, 2016
David Lusick appeals from the order, entered in the Court of Common
Pleas of Philadelphia County, dismissing his petition filed pursuant to the
Post Conviction Relief Act (PCRA).1 Upon review, we affirm.
Following a jury trial, Lusick and his girlfriend were convicted of
criminal conspiracy, involuntary deviate sexual intercourse, indecent assault,
and corruption of minors. On January 18, 1995, Lusick was sentenced to an
aggregate term of 12 to 35 years’ imprisonment. Lusick’s sentence was
affirmed on direct appeal, and his petition for allowance of appeal was
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*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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denied by the Pennsylvania Supreme Court on November 1, 1996. Lusick
filed a timely first PCRA petition that was subsequently denied. After this
Court affirmed the PCRA court’s ruling, the Pennsylvania Supreme Court
denied Lusick’s petition for allowance of appeal on December 26, 2003.
Lusick filed a second PCRA petition on November 18, 2009. This Court again
affirmed the PCRA court, and the Pennsylvania Supreme Court denied
Lusick’s petition for allowance of appeal on June 26, 2012.
Lusick filed the instant pro se PCRA petition, his third, on October 17,
2014. After issuing a notice pursuant to Pa.R.Crim.P. 907, the PCRA court
dismissed the petition without a hearing on May 22, 2015. Thereafter,
Lusick filed a timely notice of appeal.2 On appeal, Lusick raises the following
issues, verbatim:
1. Whether [the] PCRA time bar is valid when [the] lower court
judge is in want of jurisdiction to enhance petitioner’s
sentence based on Brady[3] violations and non-disclosure of
materially false testimony of [Assistant District Attorney]
Elizabeth Varki Jobes?
2. Whether a miscarriage of justice has occurred?
3. Whether mandatory minimums based on fraud and non-
dis[c]losure of ADA Jobes is retroactive?
Brief of Appellant, at 3.
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2
Although the PCRA court did not order Lusick to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), Lusick did so
on July 20, 2015.
3
Brady v. Maryland, 373 U.S. 83 (1963).
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Our standard and scope of review regarding the denial of a PCRA
petition is well-settled. We review the PCRA court’s findings of fact to
determine whether they are supported by the record, and review its
conclusions of law to determine whether they are free from legal error.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our
review is limited to the findings of the PCRA court and the evidence of
record, viewed in the light most favorable to the prevailing party at the trial
level. Id.In order to be considered timely,
[a] PCRA petition, including a second or subsequent one, must
be filed within one year of the date the petitioner’s judgment of
sentence became final, unless he pleads and proves one of the
three exceptions outlined in 42 Pa.C.S. § 9545(b)(1). A
judgment becomes final at the conclusion of direct review by
[the Pennsylvania Supreme] Court or the United States Supreme
Court, or at the expiration of the time for seeking such review.
42 Pa.C.S. § 9545(b)(3). The PCRA’s timeliness requirements
are jurisdictional; therefore, a court may not address the merits
of the issues raised if the petition was not timely filed. The
timeliness requirements apply to all PCRA petitions, regardless of
the nature of the individual claims raised therein. The PCRA
squarely places upon the petitioner the burden of proving an
untimely petition fits within one of the three exceptions.
Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (citations and
footnote omitted).
The three statutory exceptions for an untimely petition under the PCRA
consist of the following:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
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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). Additionally, a petition invoking a timeliness
exception pursuant to the statute must “be filed within 60 days of the date
the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, Lusick’s petition for allowance of appeal in our Supreme Court
was denied on November 1, 1996. Thus, his sentence became final on
January 30, 1997, upon the expiration of the ninety-day period for filing a
writ of certiorari with the United States Supreme Court. See 42 Pa.C.S. §
9545(b)(3); Sup. Ct. R. 13. Lusick therefore had until January 30, 1998, to
file a timely PCRA petition. See 42 Pa.C.S. § 9545(b)(1). Because Lusick
did not file the instant PCRA petition until October 17, 2014, it is untimely on
its face.
Lusick fails to plead or prove a timeliness exception as to his claims
regarding alleged Brady violations.4 However, Lusick asserts the newly-
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4
Lusick’s brief fails to provide a coherent argument regarding the alleged
violations. However, Lusick appears to assert that the Honorable Paula
Pryor Dembe, who presided over his trial and sentencing, was biased and
(Footnote Continued Next Page)
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recognized constitutional right exception in section 9545(b)(1)(iii) with
respect to his mandatory minimum sentence claim. Lusick bases his
argument on our decision in Commonwealth v. Newman, 99 A.3d 86 (Pa.
Super. 2014) (holding mandatory minimum sentence for certain drug
offenses committed with firearms unconstitutional pursuant to dictates of
Alleyne v. United States, 133 S.Ct. 2151 (2013) (any fact increasing
mandatory minimum sentence for crime is “element” of crime that must be
submitted to jury)).
We note, however, that Alleyne has not been held to have retroactive
effect in the context of an untimely PCRA petition. See Commonwealth v.
Ruiz, 131 A.3d 54, 58 (Pa. Super. 2015) (it has been “settled that Alleyne
does not invalidate a mandatory minimum sentence when presented in an
untimely PCRA petition”). Accordingly, Lusick has not satisfied the newly-
recognized constitutional right timeliness exception.
Finally, we note that Lusick was not actually sentenced to any
mandatory minimum sentences. Thus, even if he had satisfied a timeliness
exception as outlined above, Lusick is not entitled to relief.
Order affirmed.
_______________________
(Footnote Continued)
that ADA Elizabeth Varki Jobes had a personal relationship with the victims
and their biological father that was not disclosed prior to sentencing.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/12/2016
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