J-S47024-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ALLEN VIDMOSKO

Appellant No. 2231 MDA 2015

Appeal from the PCRA Order December 1, 2015

In the Court of Common Pleas of Lackawanna County

Criminal Division at No(s): CP-35-CR-0002279-2009

BEFORE: SHOGAN, J., LAZARUS, J., and JENKINS, J. 

MEMORANDUM BY JENKINS, J.: FILED JULY 18, 2016

Appellant Allen Vidmosko appeals from the order entered in the 

Lackawanna County Court of Common Pleas dismissing as untimely his 

petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-

9546. We affirm.

On December 21, 2009, Appellant pled guilty to one count of rape by 

forcible compulsion.1 On April 6, 2010, the trial court sentenced Appellant to 

10 to 20 years’ incarceration. Appellant filed a motion for reconsideration, 

which the trial court denied on April 13, 2010. Appellant did not file a direct 

appeal.

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1 18 Pa.C.S. § 3121(a)(1).
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On February 2, 2012, Appellant filed a petition for writ of habeas 

corpus and to withdraw guilty plea. The PCRA court treated the petition as a 

PCRA petition and appointed counsel. On March 8, 2012, the 

Commonwealth filed a motion to dismiss the PCRA petition. On March 4, 

2013, counsel filed a motion to withdraw as counsel pursuant to 

Turner/Finley.

2

 On June 4, 2013, the PCRA court granted the petition to 

withdraw and issued notice of its intent to dismiss the PCRA petition without 

a hearing pursuant to Pennsylvania Rule of Criminal Procedure 907. On July 

20, 2013, the PCRA court dismissed the PCRA petition. This Court affirmed 

the order on May 14, 2014 and, on October 21, 2014, the Supreme Court of 

Pennsylvania denied Appellant’s petition for allowance of appeal.

On July 21, 2015, Appellant filed a second PCRA petition. On October 

22, 2015, the PCRA court issued notice of its intent to dismiss the petition 

without a hearing. On November 20, 2015, Appellant filed an objection to 

the notice of intent. On December 1, 2015, the PCRA court dismissed the 

petition. On December 18, 2015, Appellant filed a timely notice of appeal. 

Both Appellant and the trial court complied with Pennsylvania Rule of 

Appellate Procedure 1925.

Appellant raises the following issues on appeal:

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2 Commonwealth v. Turner, 544 A.2d 927 (Pa.1988) and 

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988) (en banc).
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I. Did the [PCRA c]ourt err in denying the [PCRA p]etition 

without a hearing by declaring the [PCRA p]etition facially 

untimely when [Appellant] filed the instant [p]etition 

timely within the allotted sixty (60) days of discovering his 

sentence was unconstitutional, therefore, illegal in light of 

the Pennsylvania Supreme Court decision in 

Commonwealth v. Hopkins, 117 A.3d 247 ([Pa.]2015)?

II. Did the [PCRA c]ourt err by denying the [PCRA p]etition 

without a hearing by raising and utilizing the United States 

Supreme Court’s decision in Alleyne v. United States, 

133 S.Ct. 2151 (2013) sua sponte, when it was not raised 

by [Appellant], who instead raised Hopkins, as the 

primary basis for the instant Petition?

III. Did the [PCRA c]ourt err in denying the [PCRA 

p]etition without a hearing when the [PCRA c]ourt always 

retains jurisdiction through the [c]ourt’s inherent power to 

correct [Appellant’s] illegal sentence?

Appellant’s Brief at 4.

Before addressing the merits of a PCRA petition, we must first 

determine whether the petition is timely. The PCRA provides that a petition, 

“including a second or subsequent petition, shall be filed within one year of 

the date the judgment becomes final.” 42 Pa.C.S. § 9545(b)(1); accord

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010); 

Commonwealth v. Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003). A 

judgment is 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 the review.” 42 

Pa.C.S. § 9545(b)(3).

Three exceptions to the PCRA’s time-bar exist. The exceptions allow 

for limited circumstances under which a court may excuse the late filing of a 
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PCRA petition. 42 Pa.C.S. § 9545(b)(1); Monaco, 996 A.2d at 1079. To 

establish that an exception to the PCRA time-bar applies, a petitioner must 

allege and prove:

(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). When invoking an exception to the PCRA 

time-bar, the petition must “be filed within 60 days of the date the claim 

could have been presented.” 42 Pa.C.S. § 9545(b)(2).

Appellant’s judgment of sentence became final on May 13, 2010, when 

the time to seek review by this Court expired.3 He had one year from that 

date, i.e., until May 13, 2011, to file a timely PCRA petition. Therefore, his 

current petition, filed on July 21, 2015, is facially untimely. 

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3

 Appellant had 30 days from the order denying his motion for 

reconsideration of sentence, docketed on April 13, 2010, to file a direct 

appeal. Pa.R.A.P. 903(a).
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Appellant maintains he has established the newly discovered fact 

exception to the PCRA time bar, because the Pennsylvania Supreme Court 

did not issue a decision in Commonwealth v. Hopkins, 117 A.3d 247 

(Pa.2015), until June 15, 2015.4 However, case decisions are not facts for 

purposes of 42 Pa.C.S. § 9545(b)(1)(ii). Commonwealth v. Cintora, 69 

A.3d 759, 763 (Pa.Super.2013). 

Appellant also argues that we have the inherent power to correct 

illegal sentences. Appellant’s Brief at 16. “Although legality of sentence 

[claims are] always subject to review within the PCRA, claims must still first 

satisfy the PCRA’s time limits or one of the exceptions thereto.” 

Commonwealth v. Infante, 63 A.3d 358, 365 (Pa.Super.2013). 

Therefore, because Appellant’s PCRA petition is untimely, this Court lacks 

the jurisdiction to hear any claim, including a legality of sentence challenge. 

Id. 

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4 Contrary to Appellant’s arguments, the decision in Hopkins did not create 

a new fact “of his sentence becoming illegal.” Appellant’s Brief at 8, 15. In 

Hopkins, the Supreme Court of Pennsylvania found that pursuant Alleyne 

v. United States, --- U.S. ---, 133 S.Ct. 2151, 2158, 186 L.Ed.2d 314

(2013), the mandatory minimum sentencing scheme set forth in 18 Pa.C.S. 

§ 6317 (“Drug-free school zones”) was unconstitutional in its entirety. See

Hopkins, 117 A.3d at 262. The appellant in Hopkins had filed a direct 

appeal, as his sentence was not final at the time the Supreme Court of the 

United States issued its decision in Alleyne. 
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Because Appellant failed to allege and prove any exception to the 

PCRA time bar, the PCRA court properly dismissed his second PCRA petition 

as untimely.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/18/2016