J-S64034-16


                                  2016 PA Super 185

COMMONWEALTH 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

____________________________________________


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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