J-S09038-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

KEVIN TYLER WHITTLE,

                        Appellant                  No. 1532 WDA 2014


          Appeal from the PCRA Order entered August 18, 2014,
              in the Court of Common Pleas of Butler County,
           Criminal Division, at No(s): CP-10-CR-0000244-2006


BEFORE: FORD ELLIOTT, P.J.E., BOWES, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.:                       FILED FEBRUARY 10, 2015

     Kevin Tyler Whittle (“Appellant”) appeals from the order denying his

untimely petition for post-conviction relief filed pursuant to the Post

Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.

     The pertinent facts and procedural history are as follows:

           On January 5, 2006, Pennsylvania State Trooper Brian
        G. Crouch received information from an anonymous source
        that [Appellant] and his former girlfriend, co-conspirator
        Cassandra Cunningham, were selling heroin from a home
        at 328 North Broad Street in Butler, PA. Based on this
        information, Trooper Crouch, with the assistance of a
        confidential informant, arranged two controlled purchases
        of heroin from [Appellant] and Cunningham. After the
        second purchase, on January 12, 2006, the trooper applied
        for a search warrant for 328 North Broad Street. The
        warrant was executed on January 13, 2006, and narcotics
        and firearms were recovered from the house. Appellant,
        who arrived at the residence approximately five to ten
        minutes after the search began, was arrested and
        subsequently charged with, inter alia, possession with
        intent to deliver heroin, delivery of heroin, possession of
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        drug paraphernalia, criminal conspiracy, and violations of
        the Uniform Firearms Act.

           Appellant filed an omnibus pretrial motion seeking
        suppression of the evidence obtained during the execution
        of the search warrant, as well as a statement [Appellant]
        made to the police at the time of his arrest. The motion
        was denied by the trial court on June 12, 2006. Two
        months later, on August 24, 2006, a jury found [Appellant]
        guilty of all charges.       Appellant was sentenced, on
        September 28, 2006, to an aggregate term of
        imprisonment of 14½ years to 29 years. Appellant filed a
        post-sentence motion, which was denied by the trial court
        on February 1, 2007. [While his counseled post-sentence
        motion was pending, Appellant filed a pro se PCRA petition
        that the trial court promptly denied as premature].

Commonwealth v. Whittle, 951 A.2d 1220 (Pa. Super. 2008), unpublished

memorandum at 1-3 (footnotes omitted).

     Pertinent to his present appeal, Appellant’s aggregate sentence

included a mandatory minimum sentence of five years for Appellant’s

possession with intent to deliver conviction, pursuant to 18 Pa.C.S.A. § 7508

and 42 Pa.C.S.A. § 9712.1. See Sentence, 9/28/06, at 1.

     Appellant filed a timely direct appeal to this Court. On February 15,

2008, we rejected Appellant’s claims, and affirmed his judgment of

sentence. Whittle, supra. On August 6, 2008, our Supreme Court denied

Appellant’s petition for allowance of appeal.   Commonwealth v. Whittle,

2008 Pa. LEXIS 1242, ___ A.2d ___ (Pa. 2008).

     Appellant filed a pro se PCRA petition on November 6, 2009.         The

PCRA court appointed counsel, and PCRA counsel subsequently filed a “no-

merit” letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.


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1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en

banc). Subsequently, the PCRA court permitted PCRA counsel to withdraw,

and dismissed Appellant’s PCRA petition on June 3, 2010. Appellant filed a

timely appeal. In an unpublished memorandum filed on April 20, 2011, this

Court affirmed the PCRA court’s order denying Appellant post-conviction

relief.     Commonwealth v. Whittle, 29 A.3d 841 (Pa. Super. 2010).

Appellant did not file a petition for allowance of appeal with our Supreme

Court.

          On December 9, 2013, Appellant filed a second pro se PCRA petition.

On December 20, 2013, the PCRA court issued Pa.R.Crim.P. 907 notice of its

intent to dismiss Appellant’s second PCRA petition because it was untimely,

and Appellant failed to prove an exception to the PCRA’s time-bar. Rather

than file a response to the PCRA court’s notice, Appellant filed an appeal to

this Court.      We quashed the appeal because there was no final order

entered.       By order entered August 18, 2014, the PCRA court denied

Appellant’s second PCRA petition.           This timely appeal followed.           Both

Appellant and the PCRA court have complied with Pa.R.A.P. 1925.

          This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

supported      by   the   evidence   of   record   and   is   free   of   legal   error.

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

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1166 (Pa. Super. 2001).       Moreover, a PCRA court may decline to hold a

hearing on the petition if the PCRA court determines that the petitioner’s

claim is patently frivolous and is without a trace of support in either the

record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011

(Pa. Super. 2001).

      Before addressing the issues Appellant presents on appeal, we must

first consider whether the PCRA court properly determined that Appellant’s

petition was untimely.       The timeliness of a post-conviction petition is

jurisdictional.   Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa.

2010) (citation omitted). Thus, if a petition is untimely, neither an appellate

court nor the PCRA court has jurisdiction over the petition.             Id.    “Without

jurisdiction, we simply do not have the legal authority to address the

substantive claims” raised in an untimely petition. Id.

      Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

becomes final unless the petition alleges, and the petitioner proves, an

exception to the time for filing the petition. Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under

these exceptions, the petitioner must plead and prove that: “(1) there has

been interference by government officials in the presentation of the claim; or

(2)   there   exists   after-discovered    facts   or   evidence;   or    (3)    a   new

constitutional right has been recognized.” Commonwealth v. Fowler, 930

A.2d 586, 591 (Pa. Super. 2007) (citations omitted).                A PCRA petition

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invoking one of these statutory exceptions must “be filed within sixty days of

the date the claim first could have been presented.” Gamboa-Taylor, 753

A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to

the time restrictions of the PCRA must be pled in the petition, and may not

be raised for the first time on appeal.   Commonwealth v. Burton, 936

A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not

raised before the lower court are waived and cannot be raised for the first

time on appeal.”).

      Appellant’s judgment of sentence became final on November 4, 2008,

when the ninety-day period for filing a writ of certiorari with the United

States Supreme Court expired.       See U.S.Sup.Ct.R. 13; 42 Pa.C.S.A. §

9545(b)(3). Therefore, Appellant had to file the PCRA petition at issue by

November 4, 2009 in order for it to be timely. As Appellant filed the instant

petition on December 13, 2013, it is untimely unless he has satisfied his

burden of pleading and proving that one of the enumerated exceptions

applies.   See Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa.

1999).

      Appellant has failed to prove the applicability of any of the exceptions

to the PCRA’s time restrictions. Appellant contends that his PCRA falls under

the exception of subsection 9545(b)(1)(iii) because the United States

Supreme Court recognized a new constitutional right in Alleyne v. United

States, 133 S.Ct. 2151 (2013). In Alleyne, the high court held that “facts


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that increase mandatory minimum sentences must be submitted to the

jury.” Alleyne, 133 S.Ct. at 2163. Appellant’s claim fails for two reasons.

       First, Alleyne was decided on June 17, 2013. As recognized by the

PCRA court, see PCRA Court Opinion, 12/20/13, at 1-2, Appellant did not file

the instant PCRA petition until almost six months later, well outside the

PCRA’s requirement.           See Gamboa-Taylor, supra; 42 Pa.C.S.A. §

9545(b)(2).     Appellant cites no authority for his claim that his tardiness

should be excused because he was unrepresented by counsel.                 See

Appellant’s Brief at 30-31.1

       Second, in the similar case of Commonwealth v. Miller, 102 A.3d

988 (Pa. 2014), we rejected a PCRA petitioner’s attempt to rely upon the

Alleyne decision:

                     Even assuming that Alleyne did announce a new
              constitutional right, neither our Supreme Court, not 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. This is fatal to
              [Miller’s] argument regarding the PCRA time-bar. 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 our Supreme
              Court specifically holds it to be retroactively applicable
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1
  For this same reason, we reject Appellant’s claim that he had sixty days
from this Court’s decision in Commonwealth v. Newman, 99 A.3d 86 (Pa.
Super. 2014) (en banc) to file his PCRA petition. See Appellant’s Brief at
31.




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           to those cases. Commonwealth v. Phillips, [] 31
           A.3d 317, 320 (Pa. Super. 2011), appeal denied, 615
           Pa. 784, 42 A.3d 1059 (Pa. 2012), citing Tyler v. Cain,
           533 U.S. 656, 663, 121 S.Ct 2478, 150 L.Ed. 2d 632
           (2001); see also, e.g., Commonwealth v. Taylor, []
           933 A.2d 1035, 1042 (Pa. Super. 2007) (stating "for
           purposes of [42 Pa.C.S.A. § 9545(b)(1)(iii)], the
           language ‘has been held by that court to apply
           retroactively’ means the court announcing the rule must
           have also ruled on the retroactivity of the new
           constitutional right, before the petitioner can assert
           retroactive application of the right in a PCRA
           petition[]”), appeal denied, 597 Pa. 715, 951 A.2d 1163
           (Pa. 2008). Therefore, [Miller] has failed to satisfy the
           new constitutional right exception to the time bar.

                  We are aware that an issue pertaining to Alleyne
           goes to the legality of the sentence.                 See
           Commonwealth v. Newman, 99 A.3d 86, [90] (Pa.
           Super. 2014) (en banc) (stating, “a challenge to a
           sentence premised upon Alleyne likewise implicates the
           legality of the sentence and cannot be waived on
           appeal[]”).     It is generally true that “this Court is
           endowed with the ability to consider an issue of
           illegality of sentence sua sponte.” Commonwealth v.
           Orellana, [] 86 A.2d 877, 883 n.7 (Pa. Super. 2014)
           (citation omitted). However, in order for this Court to
           review a legality of sentence claim, there must be a
           basis for our jurisdiction to engage in such a review.
           See Commonwealth v. Borovichka, [] 18 A.3d 1242,
           1254 (Pa. Super. 2011) (stating, “[a] challenge to the
           legality of a sentence . . . may be entertained as long
           as the reviewing court has jurisdiction[]”) (citation
           omitted). As this Court recently noted, “[t]hough not
           technically waivable, a legality [of sentence] claim may
           nevertheless be lost should it be raised . . . in an
           untimely PCRA petition for which no time-bar exception
           applies, thus depriving the court of jurisdiction over the
           claim.” [Commonwealth v. Seskey, 96 A.3d 237,
           242 (Pa. Super. 2014)]. As a result, the PCRA court
           lacked jurisdiction to consider the merits of [Miller’s]
           second PCRA petition, as it was untimely filed and no
           exception was proven.

Miller, 102 A.3d at 995-96 (footnote omitted).

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         The above discussion in Miller explains the second reason why

Appellant’s attempt to meet the PCRA’s time bar pursuant to § 9545(b)(iii)

fails.

         In sum, Appellant’s PCRA petition is facially untimely, and he has failed

to meet his burden of proof with regard to any exception to the timeliness

requirements of the PCRA. We therefore affirm the PCRA court’s denial of

Appellant’s petition for post-conviction relief.

         Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/10/2015




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