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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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