Com. v. Whitehawk, T. , 146 A.3d 266 ( 2016 )

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2016 PA Super 185COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TRAVIS JUSTIN WHITEHAWK
Appellant No. 330 EDA 2016
Appeal from the PCRA Order January 6, 2016
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0003018-2010
BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED AUGUST 24, 2016
Appellant Travis Justin Whitehawk appeals, pro se, the order entered
in the Court of Common Pleas of Montgomery County on January 6, 2016,
dismissing as untimely his first petition filed pursuant to the Post Conviction
Relief Act (“PCRA”).1 We affirm.
On May 17, 2011, Appellant entered a negotiated plea of guilty to a
first-degree felony of Involuntary Deviate Sexual Intercourse with a child2
and pursuant to the plea negotiations was sentenced to a term of eight (8)
years to twenty (20) years in prison. Also, in accordance with the plea, the
Commonwealth withdrew nine related charges. Appellant filed a motion to
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1
42 Pa.C.S.A. §§ 9541-46.
2
18 Pa.C.S.A. § 3123(b).
*Former Justice specially assigned to the Superior Court.
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withdraw his guilty plea on May 24, 2011, and the trial court denied the
same on May 26, 2011. On June 10, 2011, the trial court denied Appellant’s
motion for reconsideration of sentence. Appellant did not file a direct appeal
with this Court.
On August 11, 2015, Appellant filed the instant PCRA petition pro se.3
Counsel was appointed and on December 4, 2015, filed a motion to withdraw
as counsel along with a “no-merit” letter pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550
A.2d 213 (Pa.Super. 1988) (en banc). Upon finding that counsel had
complied with the requirements of Turner/Finley, the PCRA court granted
PCRA counsel’s motion to withdraw and notified Appellant on December 7,
2015, pursuant to PaR.Crim.P. 907(1) that his PCRA petition would be
dismissed unless a response was filed within twenty (20) days. Appellant
filed his “Objection to Intent to Dismiss Post Conviction Relief Act Pursuant
to Pa.R.Crim.Proc. Rule 907” on December 24, 2015, wherein he challenged
the legality of his sentence. Specifically, Appellant averred the decision of
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3
While Appellant’s PCRA petition is time-stamped August 24, 2015, the
petition itself is dated August 11, 2015, and Appellant attached thereto a
proof of service certifying that on that date, he served his petition by first
class mail. Also, a copy of an envelope dated August 12, 2015, appears in
the certified record. Accordingly, we conclude that pursuant to the “prisoner
mailbox rule,” Appellant filed his PCRA petition on August 11, 2015. See
Commonwealth v. Wilson, 911 A.2d 942, 944 (Pa.Super. 2006)
(recognizing that under the “prisoner mailbox rule” a document is deemed
filed when placed in the hands of prison authorities for mailing).
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the United States Supreme Court in Alleyne v. United States, ___ U.S.
____, 133 S.Ct. 2151 (2013) had rendered his sentence illegal and that he
was entitled to relief under the “newly discovered facts” exception to the
PCRA time-bar set forth in 42 Pa.C.S.A. § 9545(b)(1)(ii). 4
After its independent review of Appellant's claims set forth in his PCRA
petition, counsel’s motion to withdraw and accompanying no-merit letter,
Appellant’s response to the Rule 907 Notice, and the complete record, the
PCRA court held there were no genuine issues concerning any material fact
that would entitle Appellant to post-conviction relief. Finding that no
purpose would be served by further proceedings, the PCRA court granted
counsel’s motion to withdraw and dismissed Appellant’s petition without a
hearing on January 6, 2016.5 In doing so, the PCRA court first determined
Appellant had waived his claims by pleading guilty and failing to appeal his
judgment of sentence. See Final Order Denying Post-Conviction Petition and
Granting Counsel’s Motion to Withdraw at 2. The PCRA court further found
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4
Alleyne held that, other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory minimum
must be submitted to a jury and proved beyond a reasonable doubt. Id. at
2160-61.
5
Appellant does not challenge the PCRA court’s order allowing counsel to
withdraw, nor does he raise any issue with his proceeding pro se on appeal.
We shall not raise sua sponte the propriety of the trial court’s order granting
counsel’s motion to withdraw. See Commonwealth v. Pitts, 603 Pa. 1,
981 A.2d 875 (2009).
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Appellant had failed to allege and prove that an exception to the one-year
time-bar under the PCRA had been met. Id. at 4.
On January 21, 2016, Appellant filed a timely appeal, pro se, with this
Court. In his appellate brief, Appellant presents the following Statement of
the Questions Involved:
I. Did the P.C.R.A. Court err in denying the Post Conviction
Relief Act Petition without a hearing by misapprehending the
retrospective application in Commonwealth v. Hopkins, 117
A.3d 247 (2015) when it’s [sic] paradigm, Alleyne v. United
States, 133 S.Ct. 2151 (2013) created a “substantive rule,”
which “the Constitution requires State Collateral Review Courts
to give retroactive effect to that rule?”
II. Did the P.C.R.A. Court err in denying the Post Conviction
Relief Act Petition without a hearing when [Appellant] filed the
instant Post Conviction Relief Act Petition timely by filing within
sixty (60) days of learning of the Supreme Court of
Pennsylvania’s decision in Commonwealth v. Hopkins, 117
A.3d 247 (2015)?
III. Did the P.C.R.A. Court err in denying the Post Conviction
Relief Act Petition without a hearing when [Appellant] contends
that through the Court’s inherent power, the P.C.R.A. Court
always retains jurisdiction to correct his patently
unconstitutional, and therefore illegal sentence?
Brief for Appellant at 4.
Our standard of review of a PCRA court's dismissal of a PCRA petition
is limited to examining whether the PCRA court's determination is supported
by the record evidence and free of legal error. Commonwealth v. Wilson,
824 A.2d 331, 333 (Pa.Super. 2003) (en banc). Before addressing the
merits of Appellant's claims, we must first determine whether we have
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jurisdiction to entertain the underlying PCRA petition. See Commonwealth
v. Hackett, 598 Pa. 350, 956 A.2d 978, 983 (2008) (explaining that the
timeliness of a PCRA petition is a jurisdictional requisite).
The most recent amendments to the PCRA, effective January 19, 1996,
provide that a PCRA petition, including a second or subsequent petition, shall
be filed within one year of the date the underlying judgment becomes final.
42 Pa.C.S.A. § 9545(b)(1). 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
the time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3).
The three statutory exceptions to the timeliness provisions in the PCRA
allow for very limited circumstances under which the late filing of a petition
will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a
petition must allege and the petitioner must prove:
(i) the failure to raise a claim previously was the result of
interference by government officials with the
presentation of the claim in violation of the Constitution
or the law of this Commonwealth or the Constitution or
law 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 Pennsylvania after
the time period provide in this section and has been
held by that court to apply retroactively.
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42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). “We emphasize that it is the petitioner
who bears the burden to allege and prove that one of the timeliness
exceptions applies.” Commonwealth v. Marshall, 596 Pa. 587, 596, 947
A.2d 714, 719 (2008) (citations omitted).
Instantly, Appellant was sentenced on May 17, 2011, and his motion
for reconsideration of sentence was denied on June 10, 2011. Appellant did
not file a timely appeal with this Court. Therefore, Appellant’s judgment of
sentence became final thirty days thereafter on July 11, 2011.6 See 42
Pa.C.S.A. § 9545(b)(3) (providing “a judgment becomes 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[ ]”). As such, Appellant had until
July 11, 2012, to file a timely first petition for post-conviction relief.
Appellant filed the instant PCRA petition on August 11, 2015; therefore, it is
patently untimely, and the PCRA court could not address the merits of
Appellant’s petition unless a timeliness exception applies.
Appellant argues his petition is not time-barred because the United
States Supreme Court created a “new rule” of substantive law in Alleyne,
supra, that applies retroactively to cases on collateral review. Brief for
Appellant at 11, 15. Appellant urges that were Alleyne not applied
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6
July 10, 2011, fell on a Sunday.
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retroactively herein, he would be facing “a punishment that the law cannot
impose on him.” He further reasons that as he has sought relief under the
PCRA, the sole means for seeking collateral relief in this Commonwealth, he
“must be afforded the constitutional right of retroactive application of
Alleyne, due to fact that the ‘new rule’ announced is a ‘substantive rule,’
and therefore applies retroactively to cases on collateral review.” Id. at 15-
16. Appellant explains that he is raising this “newly discovered fact” that his
sentence became illegal in light of the Pennsylvania Supreme Court’s
decision in Commonwealth v. Hopkins, ___ Pa. ____, 117 A.2d 247(2015) to invoke the exception to the PCRA time-bar under 42 Pa.C.S.A. §
9545(b)(1)(ii).7 Appellant reasons that as he filed the instant PCRA petition
within sixty (60) days of when he became aware of the Hopkins decision, it
should be deemed to be timely filed, as Hopkins provided “implied
retroactivity” of Alleyne. Id. at 26. Appellant posits that the PCRA court,
though its “inherent power” “always” retains jurisdiction to correct an illegal
sentence. Id. at 25.
As long as this Court has jurisdiction over a matter, a legality of
sentencing issue is reviewable and cannot be waived. Commonwealth v.
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7
In Hopkins, our Supreme Court held that 18 Pa.C.S.A. § 6317 which
imposed a mandatory minimum sentence for a drug sale or PWID within
1,000 feet of a school was unconstitutional in its entirety, as certain
provisions of the statute do not adhere to Alleyne’s rule and are not
severable from the remaining portions of the statute. Hopkins, ___ Pa. at
____, 117 A.3d at 262.
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Jones, 932 A.2d 179, 182 (Pa.Super. 2007). However, a legality of
sentencing issue must be raised in a timely filed PCRA petition. See 42
Pa.C.S.A. § 9545(b)(2); Commonwealth v. Fahy, 558 Pa. 313, 330, 737
A.2d 214, 223 (1999) (holding that “[a]lthough a 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”). Thus, an appellant
must present an illegal sentencing claim in a timely PCRA petition over which
this Court has jurisdiction. See Fahy, supra, and Commonwealth v.
Miller, 102 A.3d 988, 994 (Pa.Super. 2014) (observing Alleyne does not
invalidate a mandatory minimum sentence challenged in an untimely PCRA
petition).
Our Supreme Court decided Hopkins on June 15, 2015; thus, in order
to invoke the newly-discovered fact exception of 42 Pa.C.S.A. §
9545(b)(1)(ii) Appellant needed to submit his PCRA petition within sixty
days thereof, not within sixty days of the date upon which he became aware
of the decision. See 42 Pa.C.S. § 9545(b)(2); Commonwealth v.
Brandon, 51 A.3d 231, 235 (Pa.Super. 2012) (providing that the sixty-day
time period with respect to new decisional law begins to run upon the date
of the underlying judicial decision). As previously stated, pursuant to the
prisoner mailbox rule Appellant filed his PCRA petition on August 11, 2015,
which was within sixty (60) days of the Hopkins decision.
Notwithstanding, the Pennsylvania Supreme Court has held that “subsequent
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decisional law does not amount to a new ‘fact’ under section 9545(b)(1)(ii)
of the PCRA.” Commonwealth v. Watts, 611 Pa. 80, 23 A.3d 980, 987
(2011).
Also, contrary to Appellant’s claim, the Hopkins decision did not
announce a “new rule,” but rather simply assessed the validity of Section
6317 under Alleyne and concluded that particular mandatory minimum
sentencing statute was unconstitutional. Furthermore, even if Hopkins had
announced a new rule, neither our Supreme Court nor the United States
Supreme Court has held that Hopkins applies retroactively to post-
conviction petitioners such as Appellant. Consequently, to the extent
Appellant attempts to rely on Hopkins, he has not satisfied the timeliness
exception of Section 9545(b)(1).
Finally, assuming that Alleyne announced a new constitutional right,
neither our Supreme Court nor the United States Supreme Court has held
that Alleyne is to be applied retroactively to cases in which the judgment of
sentence had become final, and this Court has recognized that a new rule of
constitutional law is applied retroactively to cases on collateral review only if
the United States Supreme Court or the Pennsylvania Supreme Court
specifically holds it to be retroactively applicable to those cases.
Commonwealth v. Phillips, 31 A.3d 317, 320 (Pa.Super. 2011), appeal
denied, 615 Pa. 784, 42 A.3d 1059 (2012). To the contrary, our Supreme
Court recently filed an opinion in Commonwealth v. Washington, 2016
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WL 3909088 (Pa. July 19, 2016) wherein it addressed the retroactive effect
of Alleyne and held “that Alleyne [ v. United States, ___ U.S. ____, 133
S.Ct. 2151 (2013),] does not apply retroactively to cases pending on
collateral review. . . .” Id. at *8.
For all of the foregoing reasons, we find the PCRA court lacked
jurisdiction to consider the merits of Appellant’s PCRA petition and properly
dismissed it as untimely filed. Accordingly, we affirm the PCRA court’s
January 6, 2016, Order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/24/2016
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