J-S42013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TRACY WHITAKER                             :
                                               :
                       Appellant               :   No. 1025 EDA 2019

            Appeal from the PCRA Order Entered February 27, 2019
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0010631-1991


BEFORE:      OTT, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY OTT, J.:                                FILED OCTOBER 04, 2019

        Tracy Whitaker appeals, pro se, from the order entered February 27,

2019, in the Delaware County Court of Common Pleas, dismissing as untimely

his first petition for collateral relief filed pursuant to the Post Conviction Relief

Act (“PCRA”).1       Whitaker seeks relief from the judgment of sentence of 6

years’ and 68 days’ imprisonment, imposed on February 9, 1995, following

the revocation of his parole. On appeal, he asserts the PCRA court erred in

dismissing the petition as untimely because he received ineffective assistance




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*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S.A. §§ 9541-9546.
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of counsel, and he has a newly discovered fact.2 For the reasons discussed

below, we affirm.

        As we write primarily for the parties, a detailed factual and procedural

history is unnecessary. We briefly note, on June 8, 1992, Whitaker entered a

negotiated guilty plea to one count of simple assault and four counts of

receiving stolen property. The trial court sentenced him in accordance with

the terms of the plea agreement to an aggregate term of 6 to 24 months’

minus one-day imprisonment. Whitaker did not file a direct appeal.

        Subsequently, in an unrelated matter, a jury convicted Whitaker of

murder in the first degree. On January 3, 1995, the trial court sentenced

Whitaker to life imprisonment.

        Following Whitaker’s conviction, a Gagnon II parole violation hearing3

took place on February 9, 1995. The trial court revoked Whitaker’s parole and

sentenced him to serve his full back time of 6 years and 68 days, consecutive

to the life sentence. Thus, Whitaker has not yet begun serving this sentence.

Whitaker did not file an appeal.



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2 For ease of disposition, we have reordered the issues in Whitaker’s brief.
Moreover, because of our holding that the petition is untimely, we do not
address Whitaker’s third issue, his 1992 guilty plea was not knowing,
intelligent, and voluntary.

3   See Gagnon v. Scarpelli, 411 U.S. 778 (1973).




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       On October 30, 2017, Whitaker, acting pro se, filed the instant PCRA

petition.    On November 17, 2017, the PCRA court appointed counsel.       On

January 23, 2019, counsel moved to withdraw.4 On January 25, 2019, the

PCRA court issued notice of its intent to dismiss the petition pursuant to

Pennsylvania Rule of Criminal Procedure 907(1) and granted counsel’s motion

to withdraw. On February 13, 2019, Whitaker, acting pro se, filed an amended

PCRA petition, which the court deemed to be a response to the Rule 907

notice.     On February 27, 2019, the PCRA court dismissed the petition as

untimely filed. This timely appeal follows.5

       “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)

(internal punctuation and citation omitted). Here, the PCRA court determined,

inter alia, Whitaker’s petition was untimely. We agree. A petitioner must file

a PCRA within one year of the date the underlying judgment becomes final.

See 42 Pa.C.S.A. § 9545(b)(1).

       The PCRA timeliness requirement, however, is mandatory and
       jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d
       1035, 1038 (Pa. Super.2007), appeal denied, 597 Pa. 715, 951
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4 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

5 In response to the PCRA court’s order, Whitaker filed a timely concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)
on April 3, 2019. On May 1, 2019, the PCRA court issued an opinion.


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        A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa. 1,
        753 A.2d 201, 203 (2000)). The court cannot ignore a petition’s
        untimeliness and reach the merits of the petition. Id.

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert. denied,

572 U.S. 1151 (2014).

        Whitaker’s judgment of sentence became final on March 13, 1995,6 30

days after the trial court revoked his parole and he failed to appeal to this

court. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a). Therefore, he had

until March 13, 1996, to file a timely PCRA petition. His petition, filed October

30, 2017, is patently untimely.

        Nevertheless, we may still consider an untimely PCRA petition if one of

the following three exceptions applies:

         (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.A. § 9545(b)(1)(i-iii).




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6   The thirtieth day, March 11, 1995, was a Saturday.

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       Here, Whitaker claims he received ineffective assistance of plea counsel.

However, this claim does not fall within any of the statutory exceptions. First,

the PCRA provides, “for purposes of this subchapter, ‘government officials’

shall not include defense counsel, whether appointed or retained.”             42

Pa.C.S.A. § 9545(b)(4). Therefore, Whitaker’s claim does not fall within the

“governmental interference” exception.           42 Pa.C.S.A. § 9454(b)(1)(i).

Second, our Supreme Court has held “a conclusion that previous counsel was

ineffective is not a newly discovered ‘fact’ entitling Appellant to the benefit of

the exception for [newly-discovered facts].” Commonwealth v. Gamboa–

Taylor, 753 A.2d 780, 785 (Pa. 2000). Therefore, Whitaker’s claim does not

satisfy the newly discovered fact exception. 42 Pa.C.S.A. § 9545(b)(1)(ii).

Finally, Whitaker’s ineffectiveness claim does not implicate the PCRA’s

exception for a newly recognized constitutional right that applies retroactively.

42 Pa.C.S.A. § 9545(b)(1)(iii). This contention does not merit relief.

       Next, Whitaker attempts to invoke the previously unknown facts

exception set forth in Subsection 9545(b)(1)(ii). Until recently, a petitioner

invoking an exception had to file his petition within 60 days of the date he or

she could have presented the claim.7


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7 Effective December 24, 2018, Act 146 of 2018 amended 42 Pa.C.S.A. §
9545(b)(2), and now provides that a PCRA petitioner invoking a timeliness
exception must file the petition within one year of the date the claim could
have been presented, for all claims arising after December 24, 2017. See Act
2018, Oct. 24, P.L. 894, No. 146, § 2 and § 3.


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      This Court has previously explained the interplay between the newly

discovered facts exception to the timeliness requirements and a substantive

collateral claim of after-discovered evidence as follows:

      The timeliness exception set forth in Section 9545(b)(1)(ii)
      requires a petitioner to demonstrate he did not know the facts
      upon which he based his petition and could not have learned those
      facts earlier by the exercise of due diligence. Due diligence
      demands that the petitioner take reasonable steps to protect his
      own interests. A petitioner must explain why he could not have
      learned the new fact(s) earlier with the exercise of due diligence.
      This rule is strictly enforced. Additionally, the focus of this
      exception is on the newly discovered facts, not on a newly
      discovered or newly willing source for previously known facts.

      The timeliness exception set forth at Section 9545(b)(1)(ii) has
      often mistakenly been referred to as the “after-discovered
      evidence” exception. This shorthand reference was a misnomer,
      since the plain language of subsection (b)(1)(ii) does not require
      the petitioner to allege and prove a claim of “after-discovered
      evidence.” Rather, as an initial jurisdictional threshold, Section
      9545(b)(1)(ii) requires a petitioner to allege and prove that there
      were facts unknown to him and that he exercised due diligence in
      discovering those facts. Once jurisdiction is established, a PCRA
      petitioner can present a substantive after-discovered-evidence
      claim. See 42 Pa.C.S.A. § 9543(a)(2)(vi) (explaining that to be
      eligible for relief under PCRA, petitioner must plead and prove by
      preponderance of evidence that conviction or sentence resulted
      from, inter alia, unavailability at time of trial of exculpatory
      evidence that has subsequently become available and would have
      changed outcome of trial if it had been introduced). In other
      words, the “new facts” exception at:

            [S]ubsection (b)(1)(ii) has two components, which
            must be alleged and proved. Namely, the petitioner
            must establish that: 1) the facts upon which the
            claim was predicated were unknown and 2) could not
            have been ascertained by the exercise of due
            diligence. If the petitioner alleges and proves these
            two components, then the PCRA court has jurisdiction
            over the claim under this subsection.


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      Thus, the “new facts” exception at Section 9545(b)(1)(ii) does not
      require any merits analysis of an underlying after-discovered-
      evidence claim.

Commonwealth v. Brown, 111 A.3d 171, 176–177 (Pa. Super. 2015) (some

citations and quotation marks omitted, emphases in original), appeal denied,

125 A.3d 1197 (Pa. 2015).      Accordingly, before we may consider whether

Whitaker’s substantive claim of after-discovered evidence merits relief, we

must first determine whether he has established “there were facts unknown

to him and that he exercised due diligence in discovering those facts.” Id. at

176. Here, Whitaker has failed to do so.

      Whitaker contends he recently discovered the criminal informations filed

in the underlying case were void ab initio because there was no official records

filed until 2007 that demonstrated the assistant district attorney who filed the

information had sworn his oath of office and/or the district attorney had given

the assistant district attorney the authority to sign informations. Whitaker’s

Brief, at 9-13. Even assuming, arguendo, this constitutes a fact which was

previously unknown to him, Whitaker has not demonstrated he acted with due

diligence. The criminal informations became part of the public docket, at the

latest, on June 8, 1992, when Whitaker executed them during his guilty plea

colloquy.   See PCRA Court Opinion, 5/01/2019, at 4.         Whitaker has not

explained why he waited over twenty-four years to inquire about them. “A

petitioner must . . . explain why his asserted facts could not have been

ascertained earlier with the exercise of due diligence.” Commonwealth v.


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Taylor, 933 A.2d 1035, 1041 (Pa. Super. 2007), appeal denied, 951 A.2d

1163 (Pa. 2008) (citation omitted).            Here, Whitaker has failed to show he

complied with the due diligence requirement of 42 Pa.C.S.A. § 9545(b)(1)(ii).

See Taylor, supra at 1041. Thus, this claim does not merit relief.8

       Accordingly, because we agree with the ruling of the PCRA court that

Whitaker did not timely file his PCRA petition and he failed to establish the

applicability of any of the time-for-filing exceptions, we affirm the order

dismissing his petition without first conducting an evidentiary hearing.

       Order affirmed.




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8 Even if we were to conclude that Whitaker had exercised due diligence, he
would not be entitled to relief. As the Commonwealth correctly notes,
Commonwealth’s Brief at 13, a defendant must bring any challenges to alleged
defects in the criminal information prior to either trial or the entry of a guilty
plea or else he waives the claim. See Commonwealth v. Ford, 141 A.3d
547, 554-556 (Pa. Super. 2016) (holding failure to challenge alleged defect in
criminal information in trial court results in waiver), appeal denied, 164 A.2d
483 (Pa. 2016). Moreover, this issue would not support a claim of ineffective
assistance of counsel because we have long held defects in the signature on
a criminal information “renders an information merely voidable and curable by
amendment if properly raised in a pre-trial motion to quash.”
Commonwealth v. Veneri, 452 A.2d 784, 788 (Pa. Super. 1982). Whitaker
would not be able to show the outcome of the case would have been different
had trial counsel raised the issue in a pre-trial motion. As we noted in Veneri,
the signature issue made the information merely voidable. See id. Had plea
counsel raised the issue, the Commonwealth surely would have had the right
to amend the information and, presumably, would have likely done so. Id.;
see also Ford, supra at 555-556.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/4/19




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