J-S08034-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

PATRICK MARSICO

                            Appellant               No. 2296 EDA 2014


                   Appeal from the PCRA Order July 18, 2014
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0000978-2003
                                         CP-45-CR-0001522-2006
                                         CP-45-CR-0001523-2006



BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.                        FILED JANUARY 23, 2015

        Appellant Patrick Marsico appeals pro se from the order entered in

Monroe County Court of Common Pleas, which dismissed his petition seeking

relief pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        The PCRA court opinion sets forth the relevant facts and procedural

history of this appeal as follows:

          On August 8, 2003, Appellant sexually assaulted ‘AY,’ a
          12-year old female. On September 15, 2003, [criminal
          information no. 978-2003] was filed against Appellant
          containing the following charges: (1) rape by forcible
          compulsion under 18 [Pa.C.S.] 3121; (2) aggravated
____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
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       indecent assault without consent under 18 [Pa.C.S.] §
       3125; (3) aggravated indecent assault of a person less
       than 13 years of age under 18 [Pa.C.S.] § 3125; (4)
       statutory rape under 18 [Pa.C.S.] § 3122; (5) indecent
       assault without consent under 18 [Pa.C.S.] § 3126; (6)
       indecent assault of a person less than 13 years of age
       under 18 [Pa.C.S.] § 3126; and (7) corruption of minors
       under 18 [Pa.C.S.] § 6301.

       On October 16, 2003, Appellant filed, and this court
       accepted, a guilty plea where Appellant pled guilty to: (1)
       statutory sexual assault under 18 [Pa.C.S.] § 3122.1 and;
       (2) indecent assault under 18 [Pa.C.S.] § 3126(a)(7). On
       January 29, 2004, Appellant was sentenced to a term of
       incarceration of one year, less a day, to a maximum of two
       years, less a day. [Appellant] was ultimately paroled and
       completed his sentence.

       On August 27, 2006, Appellant sexually assaulted TL, a 16
       year-old female, leading to case no. 1522 CR 2006. A
       subsequent investigation revealed that Appellant had also
       sexually assaulted CMB, a 15 year-old female, and SCM, a
       14 year-old female, during the summer of 2006, leading to
       case no. 1523 CR 2006.

       On March 6, 2007, Appellant pled guilty to one count of
       corruption of minors under 18 [Pa.C.S.] § 6301 for 1522
       CR 2006, and two counts of unlawful contact with a minor
       under 18 [Pa.C.S.] § 6318 for 1523 CR 2006.

       On June 20, 2007, [Appellant] was sentenced to two-to-
       five years[’] incarceration for corruption of minors.
       Appellant was also sentenced to two more sentences of
       three-to-ten years[’] incarceration, one for each respective
       count of unlawful contact with a minor. The sentences for
       each count were to run consecutively, giving Appellant a
       total    sentence     of    eight-to-twenty-five    years[’]
       incarceration.  Appellant was also ordered to register
       pursuant to Megan’s Law.

       Appellant’s sentence was aggravated in part because of his
       prior conviction for indecent assault under 18 [Pa.C.S.] §
       3126(a)(7).


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PCRA Court Opinion, filed September 25, 2014, pp. 2-4 (citations to the

record and some capitalization omitted).

      On direct appeal, this Court affirmed the trial court’s judgment of

sentence on March 10, 2008.      Appellant did not petition for allowance of

appeal with our Supreme Court. On December 16, 2013, Appellant filed his

first PCRA petition.   On February 11, 2014, the court dismissed the PCRA

petition and granted counsel’s petition to withdraw. Appellant did not appeal

or amend his petition.

      Appellant filed the present pro se PCRA petition, his second, on June

30, 2014.   Pursuant to Pa.R.Crim.P. 907, the PCRA court filed a notice of

intent to dismiss the petition without a hearing on July 3, 2014. On July 17,

2014, Appellant filed a response to the court’s Rule 907 notice, and the court

dismissed Appellant’s PCRA petition the next day.

      On July 31, 2014, Appellant filed a timely notice of appeal. On August

4, 2014, the court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and he timely

complied.

      Appellant raises the following issues for our review:

         [WHETHER] CRIMINAL INFORMATION NO. 978-2003 AS
         FILED CONTAINED A [FICTITIOUS], [NONEXISTENT] AND
         DEFECTIVE CRIMINAL OFFENSE[?]

         [WHETHER] COUNSEL WAS INEFFECTIVE FOR FAILING TO
         DO A PRE-TRIAL INVESTIGATION [AND FOR GIVING]
         APPELLANT DEFECTIVE AND MISLEADING ADVICE TO
         TAKE A GUILTY PLEA[?]

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         [WHETHER]   APPELLANT   HAD   BEEN   WRONGFULLY
         INCARCERATED ON A REPEALED CRIMINAL OFFENSE,
         THUS SUBJECTED TO PUNISHMENT REGARDING CONDUCT
         THAT CONSTITUTED THAT REPEALED OFFENSE[?]

         [WHETHER] THE REPEALED STATUTE HAD AN ADVERSE
         AND   PREJUDICIAL   EFFECT  ON   A  SUBSEQUENT
         INFORMATION IN THAT AGGRAVATED SENTENCING[?]

         [WHETHER] APPELLANT [RECEIVED] AN AGGRAVATED
         SENTENCE REGARDING 1522, 1523-2006 BASED ON A
         PRIOR FELONY CONVICTION [WHEN] SAID FELONY
         STATUTE WAS REPEALED[?]

         [WHETHER] COUNSEL WAS INEFFECTIVE FOR FAILING TO
         OBJECT AT SENTENCING, AND FAILING TO REVIEW
         APPELLANT’S ERRONEOUS PRIOR FELONY CONVICTION[?]

Appellant’s Brief, pp. 2-3.

      Our well-settled standard of review for orders denying PCRA relief is

“to determine whether the determination of the PCRA court is supported by

the evidence of record and is free of legal error. The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the

certified record.”   Commonwealth v. Barndt, 74 A.3d 185, 191-192

(Pa.Super.2013) (internal quotations and citations omitted).

      Initially, to be eligible for relief under the PCRA, a petitioner must

plead and prove by a preponderance of the evidence that he is “currently

serving a sentence of imprisonment, probation or parole for the crime[.]” 42

Pa.C.S. § 9543(a)(1)(i). A petitioner who has completed his sentence is no

longer eligible for post-conviction relief. Commonwealth v. Soto, 983 A.2d

212, 213 (Pa.Super.2009); see also Commonwealth v. Turner, 80 A.3d


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754, 765 (Pa.2013) (“due process does not require the legislature to

continue to provide collateral review when the offender is no longer serving

a sentence”). This is so even if the petitioner filed his PCRA petition during

the pendency of his sentence. See Commonwealth v. Williams, 977 A.2d

1174, 1176 (Pa.Super.2009) (“As soon as his sentence is completed, the

petitioner becomes ineligible for relief, regardless of whether he was serving

his sentence when he filed the petition”).

       Here, on January 29, 2004, the trial court sentenced Appellant to 1-2

years’ incarceration for criminal information number 978-2003.                 Appellant

completed     his   sentence     and    is     no   longer   “serving   a   sentence   of

imprisonment, probation or parole for the crime.”                  See 42 Pa.C.S. §

9543(a)(1)(i). Thus, Appellant is not eligible for relief under the PCRA for

this criminal information.2

       Before we address the merits of Appellant’s other claims, we must

determine whether his PRCA petition was timely. The timeliness of a PCRA

petition implicates the jurisdiction of both this Court and the PCRA court.

Commonwealth v. Williams, 35 A.3d 44, 52 (Pa.Super.2011), appeal

denied, 50 A.3d 121 (Pa.2012).               “Pennsylvania law makes clear that no

court has jurisdiction to hear an untimely PCRA petition.”              Id. To “accord
____________________________________________


2
    Further, Appellant’s claims on this information are without merit.
Appellant’s guilty plea clearly states Appellant pleaded guilty to “statutory
sexual assault § 3122.1” and “indecent assault § 3126(a)(7).” Guilty Plea,
filed October 16, 2003. These are not “fictitious” offenses.



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finality to the collateral review process[,]” the PCRA “confers no authority

upon [appellate courts] to fashion ad hoc equitable exceptions to the PCRA

timebar[.]” Commonwealth v. Watts, 23 A.3d 980, 983 (Pa.2011). With

respect to jurisdiction under the PCRA, this Court has further explained:

         The most recent amendments to the PCRA...provide a
         PCRA petition, including a second or subsequent petition,
         shall be filed within one year of the date the underlying
         judgment becomes final. 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
         time for seeking the review.

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

(citations and quotations omitted), appeal denied, 20 A.3d 1210 (Pa.2011).

This Court may review a PCRA petition filed more than one year after the

judgment of sentence becomes final only if the claim falls within one of the

following three statutory exceptions, which the petitioner must plead and

prove:

            (i) the failure to raise the claim 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.

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42 Pa.C.S. § 9545(b)(1).            Further, if a petition pleads one of these

exceptions, the petition will not be considered unless it is “filed within 60

days of the date the claim could have been presented.” 42 Pa.C.S. §

9545(b)(2).

       Additionally, a heightened standard applies to a second or subsequent

PCRA    petition    to    avoid   “serial        requests   for   post-conviction   relief.”

Commonwealth v. Jette, 23 A.3d 1032, 1043 (Pa.2011).                           A second or

subsequent PCRA petition “will not be entertained unless a strong prima

facie showing is offered to demonstrate that a miscarriage of justice may

have occurred.”          Commonwealth v. Hawkins, 953 A.2d 1248, 1251

(Pa.2006).     In a second or subsequent post-conviction proceeding, “all

issues are waived except those which implicate a defendant’s innocence or

which raise the possibility that the proceedings resulting in conviction were

so unfair that a miscarriage of justice which no civilized society can tolerate

occurred.”         Commonwealth             v.     Williams,      660   A.2d    614,   618

(Pa.Super.1995).

       Appellant’s judgment of sentence became final on April 10, 2008,

when Appellant’s time for seeking review with our Supreme Court had

expired.     See Monaco, supra.             Appellant filed the instant pro se PCRA

petition over six years later, on June 30, 2014. Thus, his PCRA petition is

facially untimely, and we must determine whether Appellant has pled and




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proved any of the exceptions to the PCRA time limitation. See 42 Pa.C.S. §

9545(b)(1).

      Appellant does not claim, plead or prove any of the exceptions to the

PCRA time limitation in his PCRA petition or his appellate brief.        Further,

Appellant makes no effort to explain why he did not bring his claims in a

timely manner. The PCRA court reasoned:

         [Appellant’s] filing of this second PCRA petition falls
         ourtside the jurisdictional time limit stated in 42 [Pa.C.S.]
         § 9545. Moreover, [Appellant’s] petition does not plead
         any exception to the requirements of the PCRA. Thus, we
         do not have jurisdiction to hear [Appellant’s] petition.

PCRA Court Notice of Disposition without Hearing, filed July 3, 2014, p. 1,

incorporated by reference into Rule 1925(a) Opinion.

      Appellant’s petition is time-barred, and the PCRA court properly denied

it. Accordingly, we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/23/2015




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