Com. v. Hromek, R., Jr. ( 2016 )

J-S80045-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ROLAND MATTHEW HROMEK JR.
Appellant No. 746 MDA 2016
Appeal from the PCRA Order April 13, 2016
in the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0002872-2013
BEFORE: LAZARUS, J., STABILE, J., and RANSOM, J.
MEMORANDUM BY RANSOM, J.: FILED DECEMBER 16, 2016
Appellant, Roland Matthew Hromek Jr., appeals from the April 13,
2016 order denying, as untimely, his petition filed under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
On August 23, 2013, Appellant entered into a negotiated guilty plea to
one count of involuntary deviate sexual intercourse with a child under the
age of thirteen.1 On November 25, 2013, he was sentenced to seven to
fifteen years’ incarceration. The Commonwealth did not request the ten year
mandatory minimum sentence. See Notes of Testimony (N. T.), 8/23/13, at
1. Appellant did not appeal from his judgment of sentence, and as a result,
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1
18 Pa.C.S. § 3123(b).
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his sentence became final on December 26, 2013.2 See 42 Pa.C.S. §
9545(b)(3); see also Commonwealth v. Walters, 814 A.2d 253, 255-56
(Pa. Super. 2002).
On December 11, 2015, Appellant filed a PCRA petition, arguing that
his sentence was illegal under Alleyne v. United States, 133 S. Ct. 2151(2013). Appointed counsel submitted a Turner/Finley “no merit” letter.3
The PCRA court granted counsel’s petition to withdraw and sent Appellant
notice his petition would be dismissed without a hearing. On March 13,
2016, the PCRA court dismissed Appellant’s petition as untimely.
Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
statement. The PCRA court issued a responsive opinion, noting that
Appellant’s petition was untimely and that Appellant had not received a
mandatory minimum sentence.
Herein, Appellant presents a single question for our review, namely,
whether the trial court erred in not correcting an illegal sentence.
Appellant’s Brief at III.
This Court’s standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
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2
The record indicates that Appellant filed a PCRA on December 9, 2013, but
that petition was withdrawn March 17, 2014.
3
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988).
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by the evidence of record and is free of legal error. See Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007).
We begin by addressing the timeliness of Appellant’s petition, as the
PCRA time limitations implicate our jurisdiction and may not be altered or
disregarded in order to address the merits of his claims. See
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the
PCRA, any petition for relief, including second and subsequent petitions,
must be filed within one year of the date on which the judgment of sentence
becomes final. Id. There are three exceptions:
(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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke these
exceptions “shall be filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2); see Commonwealth v.
Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).
Appellant acknowledges that his petition is untimely, but asserts that
his claim is based upon a newly recognized constitutional right held to apply
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retroactively. Appellant’s Brief at 1. According to Appellant, the sentence
imposed upon him is illegal pursuant to a newly recognized constitutional
rule, namely, that mandatory minimum statutes are facially unconstitutional
and void in their entirety. Appellant’s Brief at 1 (citing in support
Commonwealth v. Wolfe, 106 A.3d 800, 806 (Pa. Super. 2014) (noting
that a mandatory minimum sentence imposed for offenses against infant
persons was illegal pursuant to Alleyne) and Commonwealth v. Hopkins,
117 A.3d 247 (Pa. Super. 2015) (noting that numerous provisions of the
statute were constitutionally infirm under Alleyne and were not severable)).
However, Appellant’s reliance on Wolfe and Hopkins is misplaced.
Appellant has not received a mandatory minimum sentence and, as such,
Alleyne is not implicated.
Even if Appellant had received a mandatory minimum sentence, the
Pennsylvania Supreme Court has determined that the rule announced in
Alleyne was neither a substantive nor a “watershed” procedural rule and,
therefore, did not apply retroactively to cases pending on collateral review.
Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016), see also
Commonwealth v. Riggle, 119 A.3d 1058, 1064-67 (Pa. Super. 2015)
(same).
Further, Hopkins did not announce a new rule that has been held to
apply retroactively. See Commonwealth v. Whitehawk, 146 A.3d 266,
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271 (Pa. Super. 2016) (noting that Hopkins only assessed the validity of 18
Pa.C.S. § 6317 under Alleyne).
Appellant’s petition is untimely, and he has not satisfied a timeliness
exception to the requirements of the PCRA. Consequently, the PCRA court
was without jurisdiction to review the merits of Appellant’s claim and
properly dismissed his petition. See Ragan, 932 A.2d at 1170.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2016
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