J-S13011-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

WILLIAM C. RESCH

                            Appellant                  No. 520 WDA 2015


                   Appeal from the PCRA Order March 3, 2015
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0017058-2010


BEFORE: LAZARUS, J., STABILE, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                        FILED FEBRUARY 17, 2016

        William C. Resch appeals from the order, entered in the Court of

Common Pleas of Allegheny County, which dismissed his petition filed

pursuant to the Post Conviction Relief Act (PCRA).1 After careful review, we

affirm.

        The court summarized the relevant facts and procedural history as

follows:

        This matter arises from charges filed against [Resch] alleging 11
        counts of sexual assault against the victim, his biological
        daughter, between January 1, 1999[,] and [] October 30, 2010.
        On January 30, 2012[,] [Resch] appeared with counsel at which
        time a negotiated plea agreement was entered into which
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*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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        provided that in exchange for [Resch’s] nolo contendere plea to
        [involuntary deviate sexual intercourse (IDSI)] and incest,
        [Resch] would be sentenced to a period of not less than 9 nor
        more than 18 years. [Resch] would also be subject to lifetime
        registration [as a sex offender]. . . . The dismissal of [Resch’s
        first PCRA] petition was affirmed by the Superior Court in a
        memorandum opinion of December 2, 2014. On November 18,
        2014[,] [Resch] filed the instant [pro se] PCRA petition alleging
        an illegal sentence as a result of the United States Supreme
        Court decision in Alleyne v. United States, 133 S.Ct. 2151
        (2013), which held that any facts leading to an increase in a
        mandatory minimum sentence are elements of the crime and
        must be presented to a jury and proven beyond a reasonable
        doubt. . . . [Resch] was notified by order of December 3, 2014[,]
        of the intent to dismiss his PCRA petition without a hearing. On
        January 6, 2015[,] an order was entered granting [Resch] an
        extension of time to respond to the notice of intent to dismiss.
        On February 5, 2015[,] [Resch] filed his response. On March 3,
        2015, upon review of the response and the entire record, the
        petition was dismissed. This appeal followed.

Trial Court Opinion, 7/20/15, at 1-2.

        As the trial court noted, Resch included 55 separate issues in his

court-ordered concise statement of errors complained of on appeal, filed

pursuant to Pa.R.A.P. 1925(b).           The trial court categorized the issues as

follows:

        Ineffective assistance of counsel (1-7, 11, 19, 26-28, 33-35, 38-
        44, 46, 53); Prosecutorial misconduct (10, 29, 31, 32); Police
        misconduct (13-17); Due process violations (18, 20-22, 37, 45,
        48-52, 54, 55); Improper evidence (23-25); Voluntariness of
        plea (12, 46); Weight and sufficiency of evidence (30, 47);
        Brady[2] violation (36); and, Illegal sentence (8).




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2
    Brady v. Maryland, 373 U.S. 83 (1963).



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Trial Court Opinion, 7/20/15, at 1. In his brief, Resch has pared the issues

down to the following, listed verbatim:

     1.    Whether the trial court erred in denying any type of relief,
           as per erred by denying [Resch’s] PCRA petition without
           hold any type of hearing?

     2.    Was [Resch’s] counsel ineffective in regard to filing a direct
           appeal directly after the sentencing phase, and did this
           cause prejudice to [Resch], as per violated his appeal
           rights?

     3.    Is the trial court at fault in denying counsel to represent
           [Resch] in the filing of his PCRA petition proceedings?

     4.    Was [Resch’s] trial court at fault in denying [Resch] legal
           records and/or documents to perfect his appeal, and has
           this caused prejudice to [Resch]?

     5.    Was [Resch’s] counsel also ineffective for failing to provide
           documentary evidence to dispute the prosecutor’s claims;
           as per argue the search warrant was/is defective?

     6.    Was [Resch’s] plea rendered unknowingly, and therefore
           involuntary, and unintelligently, due to the counsel’s
           ineffectiveness and the pressuring of [Resch] to take the
           plea deal?

     7.    Did the trial court abuse its discretion for not ordering any
           medical test to determine if the alleged victim was actually
           sexually active or if perhaps her hymen was still intact?

     8.    Did the trial court err in denying [Resch’s] amended post-
           conviction collateral relief petition without giving [Resch]
           the benefit of an evidentiary hearing?

     9.    Did the trial court err in sentencing [Resch] to a term of
           (9) nine to (18) eighteen years for an “IDSI charge” when
           that charge only carries 48 months to 120 months for an
           individual with a zero gravity score?

     10.   Did [Resch’s] counsel deny him the right of going to trial?

     11.   Due to a licensed technologist didn’t obtain the DNA, is it
           illegal?


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Brief of Appellant, at 4a-4b.

      Our standard and scope of review of the denial of a PCRA petition is

well-settled.   We review the PCRA court’s findings of fact to determine

whether they are supported by the record, and review its conclusions of law

to determine whether they are free from legal error.       Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our review is limited to

the findings of the PCRA court and the evidence of record, viewed in the light

most favorable to the prevailing party at the trial level. Id.

      Before we may consider the merits of Resch’s claims, however, we

must consider whether this appeal is properly before us.

      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).


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       Resch was sentenced on January 30, 2012, and did not file a direct

appeal. Thus, Resch’s judgment of sentence became final on March 1, 2012,

when his time to file a notice of appeal to this Court expired. See Pa.R.A.P.

903. Resch had one year from that date to file a PCRA petition, specifically,

until March 1, 2013.        However, Resch filed the instant PCRA petition on

November 18, 2014, such that the PCRA petition is untimely on its face.

Thus, the PCRA court lacked jurisdiction to review the PCRA petition unless

Resch pled and proved one of the statutory exceptions to the time-bar.3

       Here, Resch made no attempt to plead or prove any of the PCRA

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

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3
  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).




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consider Resch’s petition and properly dismissed it.4 Jones, supra; Fahy,

supra.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/17/2016




____________________________________________


4
  The PCRA court did not dismiss                the petition on timeliness grounds.
However, it is well-settled that we            are not limited by the PCRA court’s
rationale and may affirm its decision          “if there is any basis on the record to
support the [PCRA] court’s action.”            Commonwealth v. Wiley, 966 A.2d
1153, 1157 (Pa. Super. 2009).




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