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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA 

v. 

ROBERT HRUSOVSKY, 

Appellant 

IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

No. 3299 EDA 2016 

Appeal from the PCRA Order September 12, 2016 

in the Court of Common Pleas of Northampton County, 

Criminal Division, No(s): CP-48-CR-0000684-1995 

BEFORE: OLSON, SOLANO and MUSMANNO, JJ. 

MEMORANDUM BY MUSMANNO, J.: FILED MAY 05, 2017 

Robert Hrusovsky ("Hrusovsky"), pro se, appeals from the dismissal of 

his second Petition for relief filed pursuant to the Post Conviction Relief Act 

("PCRA"). See 42 Pa.C.S.A. §§ 9541-9546. We affirm. 

In 1996, Hrusovsky pled guilty to five counts of involuntary deviate 

sexual intercourse arising out of his sexual abuse of his niece. During 

sentencing, the trial court indicated that the mandatory minimum sentence 

on each count was five years in prison. The trial court subsequently 

imposed a sentence of five to ten years in prison on each conviction, to run 

consecutively. This Court affirmed the judgment of sentence. See 

Commonwealth v. Hrusovsky, 698 A.2d 665 (Pa. Super. 1997) 

(unpublished memorandum).1 

1 Hrusovsky also entered a guilty plea to related charges in Lehigh County, 

and was sentenced to a concurrent aggregate prison term of 16 to 48 years. 
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In August 2004, Hrusovsky filed his first PCRA Petition, which was 

denied. This Court affirmed the denial. See Commonwealth v. 

Hrusovsky, 911 A.2d 181 (Pa. Super. 2006), appeal denied, 931 A.2d 656 

(Pa. Super. 2007). 

On June 16, 2016, Hrusovsky filed the instant PCRA Petition. The 

PCRA court appointed Hrusovsky counsel, who subsequently filed a Petition 

to Withdraw and a no -merit letter pursuant to Commonwealth v. Turner, 

544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 

(Pa. Super. 1988) (en banc). The PCRA court granted counsel's Petition to 

Withdraw and issued a Pennsylvania Rule of Criminal Procedure 907 Notice. 

On September 12, 2016, the PCRA court dismissed the Petition. Hrusovsky 

filed a Notice of Appeal, dated October 6, 2016, but docketed on October 13, 

2016. 

Initially, we must determine whether Hrusovsky filed a timely Notice of 

Appeal. It is well -settled that "the date the appeal period begins to run, 

'shall be the day the clerk of the court ... mails or delivers copies of the 

order to the parties.' Commonwealth v. Carter, 122 A.3d 388, 391 (Pa. 

Super. 2015) (quoting Pa.R.A.P. 108(a)(1)); see also Pa.R.Crim.P. 

114(C)(2)(c). Here, the docket indicates that the Order dismissing the PCRA 

Petition was served on Hrusovsky on September 14, 2016. Thus, 

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Hrusovsky's Notice of Appeal, docketed on October 13, 2016, was timely 

filed. See Pa.R.A.P. 903(a).2 

We review an order dismissing a petition under the PCRA 

in the light most favorable to the prevailing party at the PCRA 

level. This review is limited to the findings of the PCRA court 

and the evidence of record. We will not disturb a PCRA court's 

ruling if it is supported by evidence of record and is free of legal 

error. 

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations 

omitted). 

Any PCRA petition "shall be filed within one year of the date the 

judgment becomes final[.]" 42 Pa.C.S.A. § 9545(b)(1). A judgment of 

sentence becomes 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." Id. § 9545(b)(3). The PCRA's timeliness requirements are 

jurisdictional in nature and a court may not address the merits of the issues 

raised if the PCRA petition was not timely filed. See Commonwealth v. 

Albrecht, 994 A.2d 1091, 1093 (Pa. 2010). 

Here, Hrusovsky's judgment of sentence became final in May 1997, 

after the time to seek review with the Supreme Court of Pennsylvania 

2 Further, the Commonwealth concedes that Hrusovsky timely filed his 

Notice of Appeal on October 6, 2016, under the prisoner mailbox rule. See 

Brief for the Commonwealth at 3 n.7 (citing Commonwealth v. Wilson, 

911 A.2d 942, 944 n.3 (Pa. Super. 2006)). 

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expired. See Pa.R.A.P. 1113. Thus, Hrusovsky's 2016 PCRA Petition is 

facially untimely. 

However, Pennsylvania courts may consider an untimely petition if the 

appellant can explicitly plead and prove one of three exceptions set forth 

under 42 Pa.C.S.A. § 9545(b)(1)(i-iii). Any petition invoking one of these 

exceptions "shall be filed within 60 days of the date the claim could have 

been presented." 42 Pa.C.S.A. § 9545(b)(2); Albrecht, 992 A.2d at 1094. 

Here, Hrusovsky invokes the newly -recognized constitutional right 

exception based on Alleyne v. United States, 133 S. Ct. 2151 (2013). 

See Brief for Appellant at 7-19. In Alleyne, the Supreme Court held that 

any fact that increases the sentence for a given crime must be submitted to 

the jury and found beyond a reasonable doubt. Alleyne, 133 S. Ct. at 

2155. The Supreme Court reasoned that a Sixth Amendment violation 

occurs where these sentence -determinative facts are not submitted to a 

jury. Id. at 2156. Hrusovsky argues that Alleyne applies retroactively and 

renders his sentence illegal. See Brief for Appellant at 7-8, 9-12, 14, 16-19. 

Here, Hrusovsky filed the instant PCRA Petition on June 16, 2016, well 

over 60 days after June 17, 2013, the date that Alleyne was decided. See 

Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa. Super. 2007) (stating 

that "[w]ith regard to [a newly] -recognized constitutional right, this Court 

has held that the sixty-day period begins to run upon the date of the 

underlying judicial decision."); see also 42 Pa.C.S.A. § 9545(b)(2). 

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Further, the rule established in Alleyne does not apply retroactively 

where, as here, the judgment of sentence is final. See Commonwealth v. 

Washington, 142 A.3d 810, 820 (Pa. 2016) (stating that "Alleyne does not 

apply retroactively to cases pending on collateral review[.]"); see also 

Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (noting 

that "[t]hough not technically waivable, a legality [of sentence] claim may 

nevertheless be lost should it be raised ... in an untimely PCRA petition for 

which no time -bar exception applies, thus depriving the court of jurisdiction 

over the claim.") (citation omitted).3 

As Hrusovsky failed to meet the requirements of the newly -recognized 

constitutional right exception, the PCRA court properly dismissed his second 

PCRA Petition. 

Order affirmed. 

3 Hrusovsky cites to numerous cases relying upon Alleyne to support his 

argument that Alleyne applies retroactively and renders his sentence illegal. 

However, those cases, as well as the timeliness exception invoked by 

Hrusovsky, are based upon the new rule of law established in Alleyne, 

which is inapplicable to this case. See Washington, supra. Further, to the 

extent Hrusovsky cites to cases from this Court to avoid the 60 -day 

requirement, we note that to properly invoke the newly -recognized 

constitutional right exception, the new right must be established in a 

decision by the Supreme Court of the United States or the Supreme Court of 

Pennsylvania. See 42 Pa.C.S.A. § 9545(b)(1)(iii). 

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Judgment Entered. 

J seph D. Seletyn, Es . Prothonotary 

Date: 5/5/2017 

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