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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 S. BRODERICK
Appellant No. 1378 EDA 2016
Appeal from the PCRA Order March 28, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0003888-2007
BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 20, 2016
Appellant Patrick Broderick files this pro se appeal from the order of
the Honorable John Capuzzi of the Court of Common Pleas of Delaware
County dismissing Appellant’s third petition pursuant to the Post Conviction
Relief Act (“PCRA”)1 as untimely filed. We affirm.
In March 2008, Appellant was convicted at a bench trial of involuntary
deviate sexual intercourse (IDSI), burglary, and criminal conspiracy. 2 On
August 25, 2008, Appellant was sentenced to an aggregate term of six to
twelve years imprisonment followed by five years probation. Upon appeal,
this Court affirmed Appellant’s judgment of sentence on July 9, 2009.
____________________________________________
1
42 Pa.C.S. §§ 9541-9546.
2
18 Pa.C.S. §§ 3123(a)(1), 3502(a), 903(a), respectively.
*Former Justice specially assigned to the Superior Court.
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On April 19, 2010, Appellant filed his first PCRA petition. While counsel
was appointed to assist Appellant, appointed counsel filed a no-merit letter
alleging that the appeal was frivolous. The PCRA court dismissed Appellant’s
petition and allowed counsel to withdraw. This Court affirmed the dismissal
of the petition and our Supreme Court denied Appellant’s petition for
allowance of appeal. On March 27, 2015, Appellant filed a “Petition for Writ
of Habeas Corpus Ad Subjictiendum,” which was subsequently denied. This
Court affirmed the dismissal, deeming the filing to be an untimely second
PCRA petition.
On February 22, 2016, Appellant filed the instant pro se PCRA petition.
The PCRA court notified Appellant of its intent to dismiss the petition without
a hearing pursuant to Pa.R.Crim.P. 907. On March 28, 2016, the PCRA court
entered an order dismissing Appellant’s petition. This appeal followed.
As an initial matter, we must determine whether this appeal was
timely filed. Our rules of appellate procedure require that a notice of appeal
be filed within thirty days after the entry of the order from which the appeal
is taken. Pa.R.A.P. 903(a). An order shall be considered officially entered
the day the clerk of court mails or delivers copies of the order to the parties.
See Pa.R.A.P. 108(a)(1). As the PCRA court’s order was sent to Appellant
by first class mail on March 30, 2016, Appellant’s notice of appeal had to be
filed by Friday, April 29, 2016.
Appellant, who is incarcerated, dated his pro se notice of appeal April
7, 2016. The Court of Common Pleas of Delaware County docket indicates
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that the notice of appeal was filed on May 2, 2016. However, upon further
review of the record, we note that the notice of appeal is stamped “REC’D
APR 15 2016.” We note that the prisoner mailbox rule provides that the pro
se appeal of an incarcerated appellant is “deemed ‘filed’ on the date that the
appellant deposits the appeal with prison authorities and/or places it in the
prison mailbox.” Commonwealth v. Jones, 549 Pa. 58, 63, 700 A.2d 423,
426 (1997) (citing Smith v. Pennsylvania Board of Probation and
Parole, 546 Pa. 115, 117, 683 A.2d 278, 279 (1996)). In this case, given
that that Appellant’s notice of appeal was time-stamped received on April
15, 2016, we deem Appellant’s notice of appeal timely filed.
When reviewing the denial of a PCRA petition, we are guided by the
following standard:
The standard of review for an order denying post-conviction
relief is limited to whether the record supports the PCRA court's
determination, and whether that decision 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. Allen, 48 A.3d 1283, 1285 (Pa.Super. 2012) (citations
omitted).
It is well-established that “the PCRA's timeliness requirements are
jurisdictional in nature and must be strictly construed; courts may not
address the merits of the issues raised in a petition if it is not timely filed.”
Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa.Super. 2011)
(citations omitted). Generally, a PCRA petition must be filed within one year
of the date the judgment of sentence becomes final unless the petitioner
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meets his burden to plead and prove one of the exceptions enumerated in
42 Pa.C.S. § 9545(b)(1)(i)-(iii), which include: (1) the petitioner’s inability
to raise a claim as a result of governmental interference; (2) the discovery
of previously unknown facts or evidence that would have supported a claim;
or (3) a newly-recognized constitutional right. 42 Pa.C.S. § 9545(b)(1)(i)-
(iii). However, the PCRA limits the reach of the exceptions by providing that
a petition invoking any of the exceptions must be filed within 60 days of the
date the claim first could have been presented. Leggett, 16 A.3d at 1146
(citing 42 Pa.C.S. § 9545(b)(2)).
As noted above, the trial court sentenced Appellant on August 25,
2008. This Court affirmed Appellant’s judgment of sentence on July 9, 2009.
Appellant did not seek review in the Supreme Court. Section 9545(b)(3) of
the PCRA provides that a judgment of sentence becomes final at the
conclusion of direct review or the expiration of the time for seeking the
review. 42 Pa.C.S. § 9543(b)(3). As a result, Appellant’s judgment of
sentence became final after the 30-day period in which he was allowed to
seek review in our Supreme Court. See Pa.R.A.P. 1113(a) (stating that “a
petition for allowance of appeal shall be filed with the Prothonotary of the
Supreme Court within 30 days after the entry of the order of the Superior
Court … sought to be reviewed”). Thus, Appellant’s sentence became final
on Monday, August 10, 2009. As Appellant filed his third PCRA petition on
February 22, 2016, over six years after his sentence became final, his
petition is facially untimely.
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Appellant claims that his pro se petition meets the newly recognized
constitutional right timeliness exception, citing the rule announced in
Alleyne v. U.S., ___U.S.___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013),
prohibiting certain mandatory minimum sentences. However, as Alleyne
was filed on June 17, 2013, the trial court correctly noted that Appellant was
required to file a PCRA petition within 60 days of the date the claim could
have been presented. See Leggett, supra. Moreover, we also point out
that our Supreme Court has recently held that Alleyne does not apply
retroactively to cases on collateral review. Commonwealth v.
Washington, ___Pa.___, 37 EAP 2015, 2016 WL 3909088, at *8 (Pa. filed
July 19, 2016). Accordingly, we conclude that the PCRA court correctly
dismissed Appellant’s PCRA petition as untimely filed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/20/2016
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