J-S51021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

PATRICK S. BRODERICK

                             Appellant                No. 997 EDA 2015


                     Appeal from the Order March 31, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0003888-2007


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                      FILED NOVEMBER 16, 2015

        Patrick S. Broderick appeals from the order, entered in the Court of

Common Pleas of Delaware County, which dismissed his pro se petition for

writ of habeas corpus ad subjiciendum. After our review, we affirm.

        Broderick was convicted of involuntary deviate sexual intercourse

(IDSI),1 burglary,2 and conspiracy3 to commit these offenses following a

bench trial in March 2008. The basis for the charges involved Broderick and

his friend, Bradley Repkoe, entering the victim’s house, attacking him while

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*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 3123(a)(1).
2
    18 Pa.C.S. § 3502(a).
3
    18 Pa.C.S. § 903.
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he slept, and ramming a toilet plunger into his rectum. The victim identified

Broderick and Repkoe as his assailants. On August 25, 2008, the trial court

sentenced Broderick to six to twelve years’ for IDSI, a concurrent sentence

of four to eight years’ incarceration for conspiracy, and a consecutive five

years’ probation for burglary.

        Following sentencing, Broderick filed a timely direct appeal in which he

challenged the sufficiency of the evidence as to his IDSI and conspiracy to

commit IDSI convictions.           This Court affirmed Broderick’s judgment of

sentence on July 9, 2009.         See Commonwealth v. Broderick, 981 A.2d

912 (Pa. Super. 2009) (unpublished memorandum). Broderick also filed a

timely petition pursuant to the Post Conviction Relief Act (PCRA).4        After

court-appointed counsel was permitted to withdraw and the PCRA court

dismissed the petition, Broderick filed a timely pro se appeal.      This Court

affirmed the dismissal of the petition and our Supreme Court denied

Broderick’s petition for allowance of appeal on October 5, 2012.

        Broderick filed the instant “Petition for Writ of Habeas Corpus Ad

Subjiciendum” on March 27, 2015, asserting that he was improperly

sentenced to a longer period of incarceration than his co-conspirator. The

trial court denied the petition on March 31, 2015.          This timely appeal

followed.


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4
    42 Pa.C.S. §§ 9541-9546.



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         On appeal, Broderick raises the following issues:

         1. Does not the disproportion[ate] sentence compared to that of
            his co-defendant[’s] sentence for the same act violate[]
            Article I, Section 1, 9, 13 and 14 of both the Pennsylvania
            and United States Constitution?

         2. Does not the creation of two classes of defendant offenders
            violate[] the Pennsylvania Constitution?

         3. Does not the sentencing disproportionality violate[] both the
            United States and Pennsylvania Constitution[s]?

Brief of Appellant, at 1.

         We begin by noting that the trial court did not treat Broderick’s habeas

corpus petition as a PCRA petition.5           However, the PCRA “provides for an

action by which persons convicted of crimes they did not commit and

persons serving illegal sentences may obtain collateral relief.” 42 Pa.C.S. §

9542. Here, each of the “issues” Broderick raises is an iteration of the same

issue:     whether Broderick’s sentence is illegal since it was not identical to

the sentence imposed on his co-conspirator. Thus, since Broderick’s claim

implicates the legality of his sentence, it is cognizable under the PCRA.

Moreover, under the plain terms of the PCRA, “if the underlying substantive

claim is one that could potentially be remedied under the PCRA, that claim is

exclusive to the PCRA.” Commonwealth v. Pagan, 864 A.2d 1231, 1233



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5
  The court noted that “these issues should have been raised prior to this
point” but provided an analysis of the merits of Broderick’s habeas corpus
petition.



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(Pa. Super. 2004) (emphasis in original). Therefore, we consider Broderick’s

habeas corpus petition as if it were a PCRA petition.

      Before we may consider the merits of Broderick’s petition, we must

first have jurisdiction to do so.

      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). Although the legality of a sentence may always be raised

under the PCRA, such “claims must still first satisfy the PCRA’s time limits or

one of the exceptions thereto.”     Commonwealth v. Fahy, 737 A.2d 214,

223 (Pa. 1999).

      Broderick was sentenced on August 25, 2008, and this Court affirmed

Broderick’s judgment of sentence on July 9, 2009. Broderick did not file a

petition for allowance of appeal. Accordingly, Broderick’s sentence became

final on August 8, 2009, upon the expiration of the thirty-day period for

seeking review in our Supreme Court.         See 42 Pa.C.S. § 9545(b)(3);

Pa.R.A.P. 903(a).    Broderick had one year from that date to file a PCRA


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petition, specifically, until August 8, 2010.    However, Broderick filed the

instant petition on March 27, 2015, such that the petition is untimely on its

face. Thus, we may consider Broderick’s petition only if he pled and proved

one of the statutory exceptions6 to the time-bar.

       Here, Broderick has made no attempt to plead or prove any of the

PCRA untimeliness exceptions. Therefore, the trial court had no jurisdiction

to consider Broderick’s petition and properly dismissed it.7 Jones, supra;

Fahy, supra.
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6
  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
       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.” Id. at § 9545(b)(2).
7
  As noted above, the trial court did not dismiss the petition as an untimely
PCRA petition. However, as an appellate court we are not limited by the trial
court’s rationale and may affirm its decision on any basis. Commonwealth
v. Clemens, 66 A.3d 373, 381 n.6 (Pa. Super. 2013).



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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/16/2015




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