J-S56036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

RICHARD JOSEPH MARSOLICK,

                        Appellant                   No. 269 MDA 2016


               Appeal from the PCRA Order January 19, 2016
               In the Court of Common Pleas of Berks County
            Criminal Division at No(s): CP-06-CR-0005176-2011

BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                    FILED AUGUST 19, 2016

      Appellant appeals pro se from the order entered in the Court of

Common Pleas of Berks County dismissing his second petition filed pursuant

to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We

affirm.

      The relevant facts and procedural history have been aptly set forth, in

part, by the PCRA court as follows:

            The offenses in this case occurred in the evening,
      sometime between November 1, 2001, and November 4, 2001,
      in Cab Frye’s Motel in Hereford Township, Berks County,
      Pennsylvania, where Appellant engaged in deviate sexual
      intercourse with his six-year-old daughter and a nine-year-old
      neighbor[,] who were staying at the motel because of a power
      outage in their neighborhood. Appellant was the adult
      responsible for taking care of these girls. Appellant was 39
      years old at the time.

           Appellant was charged [with various crimes, and on]
      February 16, 2012, following a guilty plea to two counts of

*Former Justice specially assigned to the Superior Court.
J-S56036-16


       Involuntary Deviate Sexual Intercourse with a Child, an
       assessment of Appellant by the State Sexual Offenders
       Assessment Board was ordered. On May 15, 2012, Appellant
       was found to be a sexually violent predator and was sentenced,
       in accordance with the negotiated plea agreement, to not less
       than ten nor more than twenty years incarceration in a state
       correctional facility, for each count, said sentences to run
       concurrently, with credit for 177 days time served, fines, and
       restitution. He was also notified of his duty to register for the
       rest of his life. Appellant was represented by Ryan Bialas,
       Esquire, during these proceedings. [Appellant filed neither a
       post-sentence motion nor a direct appeal.]

              On October 23, 2012, Appellant filed a [PCRA] petition pro
       se and was appointed PCRA counsel. On February 18, 2014,
       PCRA counsel filed a “No Merit” letter and was permitted to
       withdraw. After giving Notice of Intent to Dismiss [Appellant’s]
       petition without a hearing, Appellant’s first PCRA petition was
       dismissed on May 15, 2014.

PCRA Court Opinion, filed 4/5/16, at 1-2.

       On November 16, 2015, Appellant filed a second pro se PCRA petition,1

and by order entered on December 4, 2015, the PCRA court provided

Appellant with notice of its intent to dismiss the petition without an

evidentiary hearing on the basis it was untimely filed.    On December 23,

2015, Appellant filed a pro se response,2 and by order entered on January 4,

____________________________________________


1
  Although Appellant’s pro se PCRA petition was docketed on November 19,
2015, the prison envelope in which Appellant’s petition was mailed bears a
time stamp of November 16, 2015. Accordingly, pursuant to the prisoner
mailbox rule, we deem Appellant’s PCRA petition to have been filed on
November 16, 2015. See Commonwealth v. Patterson, 931 A.2d 710
(Pa.Super. 2007) (discussing prisoner mailbox rule).
2
 Under the prisoner mailbox rule, although Appellant’s pro se response was
docketed on December 29, 2015, we deem it to have been filed on
(Footnote Continued Next Page)


                                           -2-
J-S56036-16


2016,    the   PCRA      court    dismissed      Appellant’s   second   PCRA   petition.

Thereafter, by order entered on January 19, 2016, clarifying it had

considered Appellant’s pro se response, the PCRA court entered an amended

order again dismissing Appellant’s second PCRA petition.3 This timely pro se

appeal followed.

        In his sole issue on appeal, Appellant complains that his sentence is

illegal because the applicable mandatory sentencing statute, 42 Pa.C.S.A. §

9718, has been ruled facially unconstitutional. See Appellant’s Brief at 2.4

        Preliminarily, we must determine whether Appellant’s second PCRA

petition was timely filed. See Commonwealth v. Hutchins, 760 A.2d 50

(Pa.Super. 2000).        “Our standard of review of the denial of PCRA relief is
                       _______________________
(Footnote Continued)

December 23, 2015, when Appellant provided the response to prison officials
for mailing purposes. See Patterson, supra.
3
  We note that “a court upon notice to the parties may modify or rescind any
order within 30 days after its entry, notwithstanding the prior termination of
any term of court, if no appeal from such order has been taken or allowed.”
42 Pa.C.S.A. § 5505. Accordingly, pursuant to Section 5505, the PCRA court
had the power to enter an amended order on January 19, 2016, which was
within 30 days of the entry of the initial order on January 4, 2016. Thus,
Appellant’s notice of appeal, which pursuant to the prisoner mailbox rule we
deem to have been filed on February 10, 2015, was timely filed. See
Pa.R.A.P. 903(a) (indicating notice of appeal must be filed within 30 days of
after entry of order from which appeal is taken).
4
  In Commonwealth v. Wolfe, 106 A.3d 800 (Pa.Super. 2014), relying
upon Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013), this
Court held Section 9718 is void in its entirety and facially unconstitutional.
During the pendency of the instant appeal, our Supreme Court affirmed this
Court’s decision. See Commonwealth v. Wolfe, ___ A.3d ___, 2016 WL
3388530 (Pa. filed 6/20/16).



                                            -3-
J-S56036-16


clear; we are limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.”         Commonwealth v.

Wojtaszek, 951 A.2d 1169, 1170 (Pa.Super. 2008) (quotation and

quotation marks omitted).

      Pennsylvania law makes it clear that no court has jurisdiction to hear

an untimely PCRA petition.     Commonwealth v. Robinson, 575 Pa. 500,

837 A.2d 1157 (2003). The most recent amendments to the PCRA, effective

January 19, 1996, provide that a PCRA petition, including a second or

subsequent petition, shall be filed within one year of the date the underlying

judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed

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 the time for seeking review.” 42 Pa.C.S.A. §

9545(b)(3).

      The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition

will be excused. 42 Pa.C.S.A. § 9545(b)(1).        To invoke an exception, a

petition must allege and the petitioner must prove:

      (i)      the failure to raise a claim previously was the result of
               interference    by    government     officials with    the
               presentation of the claim in violation of the Constitution
               or the law of this Commonwealth or the Constitution or
               law of the United States;




                                     -4-
J-S56036-16


      (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 Pennsylvania after
               the time period provide in this section and has been
               held by that court to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      “We emphasize that it is the petitioner who bears the burden to allege

and prove that one of the timeliness exceptions applies.” Commonwealth

v. Marshall, 596 Pa. 587, 596, 947 A.2d 714, 719 (2008) (citation

omitted). Moreover, as this Court has often explained, all of the time-bar

exceptions are subject to a separate deadline. Our Supreme Court has held

that any petition invoking an exception must show due diligence insofar as

the petition must be filed within 60 days of the date the claim could have

first been presented. Commonwealth v. Edmiston, 619 Pa. 549, 65 A.3d

339 (2013). See 42 Pa.C.S.A. § 9545(b)(2).

      Here, Appellant did not file a direct appeal from his May 15, 2012,

judgment of sentence, which was entered after he pled guilty before the trial

court. Thus, his judgment of sentence became final on June 14, 2012, thirty

days following the imposition of his sentence. See 42 Pa.C.S.A. §

9545(b)(3); Pa.R.A.P. 903(a).         Since Appellant filed the current PCRA

petition on November 16, 2015, more than three years after his judgment of

sentence became final, the petition is patently untimely under the PCRA.

See 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Gamboa-Taylor, 562

                                       -5-
J-S56036-16


Pa. 70, 753 A.2d 780 (2000) (holding a PCRA petition filed more than one

year after judgment of sentence becomes final is untimely and the PCRA

court lacks jurisdiction to address the petition unless the petitioner pleads

and proves a statutory exception to the PCRA time-bar).

      Appellant does not invoke any exception. Rather, he insists that his

issue relates to the legality of his sentence and maintains that such an issue

cannot be waived. He acknowledges the PCRA court found his petition to be

“time-barred,” but he argues this is contrary to the law since the issue of

legality of sentence cannot be time-barred. See Appellant’s Brief at 2

(wherein Appellant indicates his issue has “no ‘time-bar’ and is ‘non-

waivable’”).   However, Appellant’s arguments have no support under the

PCRA or in our courts’ legal precedent.

      The mandates of the PCRA are clear. “The PCRA’s untimeliness

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.” Commonwealth v. Jones, 617 Pa. 587,

54 A.3d 14, 17 (2012) (citations omitted).        As our Supreme Court has

indicated with regard to      a legality of sentencing      claim specifically,

“[a]lthough [the] legality of [a] sentence is always subject to review within

the PCRA, [legality of sentencing] claims must still first satisfy the PCRA’s

time limits or one of the exceptions thereto.”     Commonwealth v. Fahy,


                                     -6-
J-S56036-16


558 Pa. 313, 737 A.2d 214, 223 (1999).5          Accordingly, we conclude the

PCRA court properly dismissed Appellant’s second PCRA petition.

       For all of the aforementioned reasons, we affirm.

       Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/2016




____________________________________________


5
   We note that, in its appellee’s brief, the Commonwealth suggests
Appellant’s argument is an attempt to invoke the new constitutional right
exception under 42 Pa.C.S.A. § 9545(b)(1)(iii), in light of Alleyne, supra,
and its progeny.     However, in his reply brief, Appellant disavows the
Commonwealth’s characterization of his argument and indicates his “case
has nothing to do with Alleyne.” Appellant’s Reply Brief at 1-2. Rather, he
insists that, because his issue is a non-waivable sentencing claim, the PCRA
court should have granted him relief.



                                           -7-
