J-S70018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA


                        v.

TRACEY WHITAKER

                             Appellant                    No. 369 EDA 2016


                   Appeal from the PCRA Order January 12, 2016
                 In the Court of Common Pleas of Delaware County
                Criminal Division at No(s): CP-23-CR-0001147-1994


BEFORE: OLSON, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                              FILED NOVEMBER 10, 2016

        Tracey Whitaker appeals pro se from the order entered on January 12,

2016, denying him relief, without a hearing, on this, his eighth petition filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq.

The PCRA court determined the petition was untimely. Whitaker raises two

issues in this timely appeal. First, he claims his petition was timely pursuant

to the dictates of Alleyne v. United States, ___U.S.___, 133 S.Ct. 2151,

186 L.Ed.2 314 (2013) and Montgomery v. Louisiana, ___U.S.___, 136

S.Ct.    718,     193   L.Ed.2    599     (2016).   The    second   argument   is

incomprehensible.1       The PCRA court determined the petition was untimely

____________________________________________


1
  The argument appears to encompass a claim that his sentence is
unconstitutional because the trial court failed to charge the jury pursuant to
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and Whitaker did not plead and prove entitlement to any of the statutory

exceptions to the PCRA’s one-year jurisdictional time limit. After a thorough

review of the submissions by the parties, relevant law, and the certified

record, we affirm.

       Whitaker was found guilty by a jury of first-degree murder, and

related charges, regarding the beating death of nine-month-old Robert

Pringle, his girlfriend’s son.       Whitaker, who was not subject to the death

penalty, was subsequently sentenced to a mandatory sentence of life

imprisonment. He filed a direct appeal and this Court affirmed the judgment

of sentence of on August 15, 1995.                Commonwealth v. Whitaker, 668

A.2d   1199     (Pa.     Super.     1995)        (unpublished   memorandum).   The

Pennsylvania Supreme Court denied allowance of appeal on January 26,

1996. Commonwealth v. Whitaker, 672 A.2d 307 (Pa. 1996). Whitaker’s

sentence became final 90 days later, April 25, 1996, when time expired to

seek review by the United States Supreme Court. See U.S.Sup.Ct.R. 13. As

noted above, the instant petition is Whitaker’s eighth PCRA petition. The

prior seven petitions were all denied as being untimely, except for petition




                       _______________________
(Footnote Continued)

18 Pa.C.S. § 9711, regarding mitigating and aggravating circumstances to
determine whether he would receive the death penalty. Whitaker was not
subject to the death penalty.




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number five which was filed while the appeal from petition number four was

still pending.2

       Our standard of review for the denial of PCRA relief is well settled.

       In PCRA proceedings, an appellate court's scope of review is
       limited by the PCRA's parameters; since most PCRA appeals
       involve mixed questions of fact and law, the standard of review
       is whether the PCRA court's findings are supported by the record
       and free of legal error.

Commonwealth v. Pitts, 981 A.2d 875, 878 (Pa. 2009) (citation omitted).

       Before we may address the substantive claims of any PCRA petition,

we must determine if PCRA court correctly found the petition to be untimely.

       The PCRA requires that a petition seeking relief thereunder must
       be filed within one year of the date the petitioner's judgment of
       sentence becomes final.           42 Pa.C.S.A § 9545(b)(1);
       Commonwealth v. Jones, 617 Pa. 587, 54 A.3d 14, 16 (2012).
       “[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.” 42 Pa.C.S.A. § 9545.
       This timeliness requirement is jurisdictional in nature, and a
       court may not address the merits of any claim raised unless the
       petition was timely filed or the petitioner proves that one of the
       three exceptions to the timeliness requirement applies. Jones,
       54 A.3d at 16. These exceptions are:


          (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;

____________________________________________


2
  Whitaker filed at least five petitions for habeas corpus with the federal
courts, all of which afforded Whitaker no relief.



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         (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).

Commonwealth v. Cox, ___ A.3d ___, 2016 WL 5416327, at *4-5 (Pa.

2016).

      Section 9545 places an additional restriction on entitlement to any of

the three timeliness exceptions, “Any petition invoking an exception

provided in paragraph (1) shall be filed within 60 days of the date the claim

could have been filed.” 42 Pa.C.S. § 9545(b)(2).

      Whitaker now claims he is entitled to the retroactive application of

Alleyne v. United States, supra, pursuant to section 9545(b)(1)(ii) and

(iii). Whitaker’s claims fail for the following reasons.

      First, the Alleyne decision was filed on June 17, 2013 and Whitaker

filed the instant PCRA petition seeking application of Alleyne in October 16,

2014. The 16-month gap between Alleyne and this petition is well past the

60 days allowed by section 9545(b)(2). Therefore, the petition is untimely.

However, Whitaker also asserts that while the resolution of this petition has

been pending, the United States Supreme Court issued the decision in


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Montgomery v. Louisiana, supra, that requires the retroactive application

of Alleyne. Whitaker’s claim still fails for a number of reasons.

       Second, despite his bald assertions to the contrary, the Alleyne

decision is not applicable to the mandatory sentence of life imprisonment

imposed on an adult convicted of first-degree murder.             The statutory

requirements for sentencing on a conviction for first-degree murder are as

follows:

       (1) Except as provided under section 1102.1 (relating to
       sentence of persons under the age of 18 for murder, murder of
       an unborn child and murder of a law enforcement officer), a
       person who has been convicted of a murder of the first degree or
       of murder of a law enforcement officer of the first degree shall
       be sentenced to death or to a term of life imprisonment in
       accordance with 42 Pa.C.S. § 9711 (relating to sentencing
       procedure for murder of the first degree).


18 Pa.C.S. § 1102(a)(1).3

       Alleyne held that “any fact that, by law, increases the penalty for a

crime is an ‘element’ that must be submitted to the jury and found beyond a

reasonable doubt.” Alleyne 133 S.Ct. at 2155. Except in capital cases, the

verdict itself suffices to trigger the application of section 1102 and no finding

other than the verdict itself, which is the product of a finding beyond a

____________________________________________


3
  At the time Whitaker was sentenced, section 1102 did not contain the
provision regarding persons under the age of 18. This provision does not
apply to Whitaker.




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reasonable doubt, is necessary to impose the sentence such as Whitaker

received.     Accordingly,   the   foundation   of   Whitaker’s   argument,   his

entitlement to the application of Alleyne, is patently false.

      In any event, Alleyne is applicable only to those criminal cases that

were still pending on direct review. See Commonwealth v. Newman, 99

A.3d 86 (Pa. Super. 2014) (en banc).        Whitaker’s judgment of sentence

became final on April 25, 1996, when time expired for seeking relief from

the United States Supreme Court. As such, his case was not pending when

the Alleyne decision was filed in 2013.

      Further, Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718,

728 (2016) requires the retroactive application of new substantive or

watershed procedural rules, not the retroactive application of all new

constitutional pronouncements as posited by Whitaker.             See Appellant’s

Brief at 8. In Commonwealth v. Washington, 142 A.2d 810 (Pa. 2016),

the Pennsylvania Supreme Court determined the Alleyne decision was

neither a new substantive nor watershed procedural rule.             Accordingly,

Montgomery does not require retroactive application of Alleyne on

collateral review.

      As initially noted, Whitaker’s second claim is incomprehensible.        We

quote Whitaker’s “Questions Involved.”

      II. Did PCRA court erred in not addressing the constitutionality of
      the unlawful statute that authorized the judge to imposed
      sentence not declared by a jury, in violation of his 14th and 6th
      Amendment, in conjunction to Article I, sections 9, 7, and 10 of

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      both constitutions, where the sentencing court never instruct the
      jury in accordance to 18 Pa.C.S. Section 1311, 42 Pa.C.S.
      Section 9711, and 18 Pa.C.S. Section 1102, where trial court
      unlawfully imposed a automatic life sentence under 42 Pa.C.S.
      Section 9715, in face of illicit mandates under 18 Pa.C.S. Section
      1102(a)?

Appellant’s Brief at 4.

      This argument appears to claim the trial court failed to charge the jury

regarding aggravating and mitigating circumstances as required when the

jury is to determine whether a defendant shall be sentenced to death. First,

the argument, as presented in Whitaker’s brief is no more understandable

than the question quoted above. Second, Whitaker was not subject to the

death penalty. Because the argument is incomprehensible, it represents an

undeveloped argument and is therefore waived.              Commonwealth v.

Charleston,    94   A.3d   1012,   1021    (Pa.   Super.   2014)   (undeveloped

arguments are waived).

      In light of the foregoing, we find no error of law or abuse of discretion

by the PCRA court in denying Whitaker’s petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/10/2016




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