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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
PATRICK S. BRODERICK
Appellant No. 994 EDA 2017
Appeal from the PCRA Order January 30, 2017
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0003888-2007
BEFORE: BOWES, J., SHOGAN, J., AND STEVENS, P.J.E.,*
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 21, 2017
Patrick S. Broderick appeals from the January 30, 2017 order denying
his fourth petition for PCRA relief as untimely. We affirm.1
Appellant was convicted at a non-jury trial of involuntary deviate
sexual intercourse (“IDSI”), criminal conspiracy to commit IDSI, and
burglary, and was sentenced, in the aggregate, to six to twelve years
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1
This Court sua sponte raised the timeliness of the within appeal.
Appellant’s notice of appeal was docketed on March 21, 2017, twenty days
past the expiration of the thirty-day appeal period. However, the notice was
dated February 10, 2017 and post-marked February 17, 2017. The PCRA
court attributed its late filing to a clerical error in the Office of Judicial
Support, and found the notice of appeal to be timely filed. Since the record
supports that finding, we will entertain the appeal as timely filed.
* Former Justice specially assigned to the Superior Court.
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imprisonment followed by five years of probation. We summarized the facts
giving rise to his convictions when we affirmed judgment of sentence:
At dawn on April 15, 2007, Appellant and a mutual friend
Bradly Repko, entered [the victim’s] house without [the victim’s]
consent, attacked him while he was asleep in bed, and rammed
a toilet plunger deep into his rectum. The victim, who had an
ongoing relationship with Appellant’s daughter, positively
identified Appellant and Repko as his assailants.
Commonwealth v. Broderick, 981 A.2d 912 (Pa.Super. July 9, 2009)
(unpublished memorandum).
Appellant filed a timely PCRA petition and counsel was appointed.
Counsel subsequently filed a petition to withdraw and Turner/Finley no-
merit letter.2 Counsel was granted permission to withdraw and relief was
denied. This Court affirmed on October 26, 2011, and the Supreme Court
denied allowance of appeal. Commonwealth v. Broderick, 54 A.3d 346
(Pa. 2012). On March 27, 2015, Appellant filed a petition for writ of habeas
corpus, which was treated as a second PCRA petition, and dismissed as
untimely. We affirmed. Commonwealth v. Broderick, 134 A.3d 493
(Pa.Super. 2015) (unpublished memorandum). Appellant filed a third PCRA
petition on February 22, 2016, purportedly pursuant to Alleyne v. United
States, 133 S.Ct. 2151 (2013). The PCRA court dismissed the petition as
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2
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
untimely
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untimely, and this Court affirmed on appeal. Commonwealth v.
Broderick, 158 A.3d 183 (Pa.Super. 2016) (unpublished memorandum).
In this, his fourth PCRA petition, Appellant alleged that he was entitled
to relief from his illegal sentence under Alleyne and Commonwealth v.
Ciccone, 2016 PA Super 149 (Pa.Super. 2016) (opinion withdrawn). The
PCRA court issued notice of its intent to dismiss the petition as untimely, and
subsequently dismissed the petition on January 30, 2017. Appellant filed
the instant appeal.
The PCRA court issued its Pa.R.A.P. 1925(a) opinion concluding that
the petition was untimely, and that Alleyne, even if it could be applied
retroactively, did not render the petition timely as his sentence did not
involve a mandatory minimum implicated by Alleyne. See
Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016) (holding
Alleyne does not apply retroactively to cases on collateral review).
Furthermore, the PCRA court relied upon well-established authority that,
“[a]lthough the legality of sentence is always subject to review within the
PCRA, 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).
On appeal, Appellant acknowledges that his PCRA petition is facially
untimely. However, he relies upon Alleyne and Commonwealth v.
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Vasquez, 744 A.2d 1280 (Pa. 2000), in support of his contention that the
PCRA time constraints do not bar an illegal sentencing claim.
In reviewing an order denying PCRA relief, we must determine whether
the PCRA court’s determination is supported by the evidence of record and
free of legal error. Commonwealth v. Harris, 114 A.3d 1 (Pa.Super.
2015). Generally, a PCRA petition, including a second or subsequent
petition, must be filed within one year of the date the judgment is final
unless the petitioner pleads and proves that an exception to the time-bar
under 42 Pa.C.S. § 1945(b)(1)(i-iii). Even then, a PCRA petition invoking
one of these statutory exceptions must “be filed within 60 days of the date
the claims could have been presented.” 42 Pa.C.S. § 1945(b)(2).
Appellant’s judgment of sentence became final on or about August 9,
2009, thirty days after this Court affirmed judgment of sentence, when he
did not allowance of appeal from the Pennsylvania 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,
the instant petition, filed more than seven years later, is facially untimely.
Notably, Appellant has abandoned his reliance upon Ciccone for the
proposition that Alleyne retroactively applies and renders this petition
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timely. Instead, he argues that under Vasquez, illegal sentencing claims
are non-waivable and not subject to the PCRA’s time-bar.3
Appellant raises this argument for the first time on appeal, and thus it
is waived. Commonwealth v. Burton, 936 A.2d 521 (Pa.Super. 2007);
Pa.R.A.P. 302(a). Absent waiver, Appellant’s reliance upon Vasquez is
misplaced. A challenge to the legality of sentence must be presented in a
timely PCRA petition. Commonwealth v. Taylor, 65 A.3d 462, 465
(Pa.Super. 2013). Furthermore, we reiterate that our High Court has held
that Alleyne does not apply retroactively to cases pending on collateral
review. See Washington, supra.
For these reasons, the PCRA court correctly concluded that it lacked
jurisdiction to address Appellant’s petition, and dismissed it as untimely
filed.
Order affirmed.
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3
We note that Appellant was not sentenced to a mandatory minimum
sentence implicated by the United States Supreme Court’s decision in
Alleyne v. U.S., 133 S.Ct. 2151 (2013), and further, his sentence did not
exceed the statutory maximum.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/21/2017
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