Com. v. Hromek, R., Jr.

• Court: Superior Court of Pennsylvania
• Decided: December 16, 2016
• Docket: 746 MDA 2016
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________

1 18 Pa.C.S. § 3123(b). J-S80045-16

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

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).

-2- J-S80045-16

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

-3- J-S80045-16

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,

-4- J-S80045-16

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

-5-