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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                   Appellee               :
                                          :
             v.                           :
                                          :
PAUL JOSEPH BEGNOCHE,                     :
                                          :
                   Appellant              :          No. 762 MDA 2015

               Appeal from the Order entered on March 31, 2015
               in the Court of Common Pleas of Dauphin County,
                 Criminal Division, No. CP-22-CR-0004038-2010

BEFORE: DONOHUE, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                     FILED OCTOBER 19, 2015

        Paul Joseph Begnoche (“Begnoche”), pro se, appeals from the Order

denying his Motion to Determine Petitioner Begnoche[’s] Ability to Pay Fines,

Court Costs, and to Vacate Due to Inability to Pay Fines, Court Costs and to

Vacate Due to Inability to Pay (“Motion to Determine and Vacate”).       We

affirm.

        On December 5, 2011, Begnoche entered a negotiated plea of nolo

contendere to the crimes of rape of a child under 13 years of age,

involuntary deviate sexual intercourse with a child under 13 years of age,

statutory sexual assault, incest, indecent assault—person under 13 years of

age, and unlawful communication with a minor.1      That same day, the trial

court sentenced Begnoche to an aggregate prison term of ten to twenty



1
    18 Pa.C.S.A. §§ 3121(c), 3123(b), 3122.1, 4302, 6301(a)(1), 6318.
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years, followed by a consecutive 10 years of probation.         The trial court

additionally required Begnoche to pay the costs of prosecution and fines

totaling $5,500.      On April 2, 2012, the trial court entered an Order

classifying Begnoche as a sexually violent predator. Begnoche filed no direct

appeal of his judgment of sentence.

        On November 8, 2012, Begnoche timely filed his first Petition for relief

pursuant to the Post Conviction Relief Act (“PCRA”).2       In February 2013,

Begnoche’s appointed PCRA counsel petitioned to withdraw, and filed a

Turner/Finley3 letter.     The PCRA court granted counsel’s Petition and, on

January 24, 2014, entered an Order denying Begnoche’s first PCRA Petition.

On February 5, 2015, this Court entered an Order affirming the Order of the

PCRA court. Commonwealth v. Begnoche, 2015 Pa. Super. Unpub. LEXIS

2685. On March 6, 2015, Begnoche filed a Petition for allowance of appeal

to the Pennsylvania Supreme Court. On August 4, 2015, the Pennsylvania

Supreme Court denied allowance of appeal. Commonwealth v. Begnoche,

2015 Pa. LEXIS 1693 (Pa. 2015).

        On March 23, 2015, while Begnoche’s Petition for allowance of appeal

was pending before the Pennsylvania Supreme Court, Begnoche filed the

instant Motion to Determine and Vacate.       The common pleas court denied



2
    See 42 Pa.C.S.A. §§ 9541-9546.
3
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).


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Begnoche’s Motion to Determine and Vacate on March 31, 2015. Thereafter,

Begnoche filed the instant timely appeal.

      On appeal, Begnoche challenges the denial of his Motion to Determine

and Vacate, claiming that (1) his plea counsel caused him to tender an

unknowing or involuntary plea, by failing to inform him of “any” fines or

costs, for which he would be responsible; (2) the Department of Corrections

improperly attached his prison account to pay these fines and costs

(comparing Pennsylvania law to Connecticut law); and (3) the common pleas

court violated his right to due process by not conducting a hearing, in

accordance with 42 Pa.C.S.A. § 9726(c) and (d), regarding his ability to pay.

See Letter Brief for Appellant at 2-3 (unnumbered).

      The common pleas court had denied relief, concluding that it lacked

jurisdiction over the claims raised by Begnoche.        PCRA Court Opinion,

7/7/15, at 4-5. We agree, but for reasons different than those relied upon

by the common pleas court.       See Commonwealth v. Fisher, 870 A.2d

864, 870 n.11 (Pa. 2005) (stating that “[a] ruling or decision of a lower

court will be affirmed if it can be supported on any basis[,] despite the lower

court’s assignment of a wrong reason.”).

      Begnoche’s Motion to Determine and Vacate challenged the authority

of the sentencing court to impose fees and costs, without first ascertaining

his ability to pay. Because Begnoche’s Motion challenged the validity of his

guilty plea and the legality of his sentence, the common pleas court should



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have treated it as a second petition for relief filed pursuant to the PCRA.

See Commonwealth v. Concordia, 97 A.3d 366, 372 (Pa. Super. 2014)

(stating that “while challenges to the legality of a defendant’s sentence

cannot be waived, they ordinarily must be raised within a timely PCRA

petition.”); Commonwealth v. Childs, 63 A.3d 323, 325 (Pa. Super. 2013)

(stating that a claim contesting the authority of the sentencing court to

impose fees and costs constitutes a challenge to the legality of the

sentence).   See also 42 Pa.C.S.A. § 9543(a)(2)(iii) (listing a challenge to

the validity of a guilty plea as cognizable under the PCRA). We review the

denial of PCRA relief to determine whether the findings of the PCRA court are

supported by the record and free of legal error.          Commonwealth v.

Mitchell, 105 A.3d 1257, 1265 (Pa. 2014).

     Our review of the record discloses that Begnoche filed his Motion to

Determine and Vacate on March 23, 2015, while the appeal of his first PCRA

Petition was pending.4 Our Supreme Court has held that

     [a] PCRA [] court cannot entertain a new PCRA petition when a
     prior petition is still under review on appeal:

        Appellant could not have filed his second PCRA petition in
        the court of common pleas while his first PCRA petition was
        still pending before this [C]ourt. The trial court had no
        jurisdiction to adjudicate issues directly related to this case;
        only [the appellate] court did. A second appeal cannot be
        taken when another proceeding of the same type is already
        pending ….

4
 Begnoche’s Petition for allowance of appeal was filed on March 6, 2015.
Our Supreme Court denied the Petition on August 4, 2015.



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Commonwealth           v.    Porter,   35     A.3d     4,   14    (Pa.    2012)    (quoting

Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000)).

       We    therefore      conclude   that    the    common      pleas    court    properly

dismissed     Begnoche’s      Motion   to     Determine     and    Vacate    for    lack    of

jurisdiction, albeit for reasons different than those stated by the common

pleas court. See Fisher, 870 A.2d at 870 n.11. The common pleas court

lacked jurisdiction to entertain Begnoche’s Motion to Determine and Vacate,

while the appeal of the Order denying his first PCRA Petition remained

pending. Accordingly, we affirm the Order denying relief.

       Even if Begnoche had no PCRA appeal pending at the time he filed his

Motion to Determine and Vacate, he would not be entitled to relief. A PCRA

petition must be filed within one year of the date the petitioner’s judgment

of sentence became final. 42 Pa.C.S.A. § 9545(b)(3).                  The one-year time

limitation is jurisdictional and a court has no power to address the

substantive merits of an untimely petition. Commonwealth v. Abu-Jamal,

833 A.2d 719, 723-24 (Pa. 2003); Commonwealth v. Gamboa-Taylor,

753 A.2d 780, 783 (Pa. 2000). The three exceptions to the one-year filing

requirement are for newly discovered facts, interference by a government

official,   and   a   newly-recognized        constitutional     right.     42     Pa.C.S.A.

§ 9545(b)(1)(i)-(iii).      Any petition asserting one of these exceptions must

also establish that the exception was raised within sixty days of the date the

claim could have been first presented.               42 Pa.C.S.A. § 9545(b)(2).            “As


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such, when a PCRA petition is not filed within one year of the expiration of

direct review, or not eligible for one of the three limited exceptions, or

entitled to one of the exceptions, but not filed within 60 days of the date

that the claim could have been first brought, the trial court has no power to

address the substantive merits of a petitioner’s PCRA claims.”      Gamboa-

Taylor, 753 A.2d at 783.

      Here, Begnoche filed no direct appeal from his April 2, 2012 judgment

of sentence. Accordingly, his judgment of sentence became final on in May

2012, upon the expiration of the time period for filing his direct appeal. See

Pa.R.Crim.P. 720(A)(3) (stating that “[i]f the defendant does not file a timely

post-sentence motion, the defendant’s notice of appeal shall be filed within

30 days of imposition of sentence.”). Begnoche has not asserted any of the

statutory exceptions to the PCRA’s timeliness requirement. Accordingly, the

common pleas court lacked jurisdiction to consider Begnoche’s request for

PCRA relief on this basis as well.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/19/2015




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