J-S30017-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

RICKY DEAN WHITNEY

                         Appellant                    No. 1864 MDA 2016


           Appeal from the PCRA Order entered October 18, 2016,
               in the Court of Common Pleas of Adams County,
            Criminal Division, at No(s): CP-01-CR-0000789-1997.


BEFORE: SHOGAN, RANSOM, and MUSMANNO, JJ.

MEMORANDUM BY RANSOM, J.,                               FILED JUNE 27, 2017

      Appellant, Ricky Dean Whitney, appeals pro se from the October 18,

2016 order denying as untimely his serial petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      The pertinent facts and extensive procedural history, as gleaned from

our review of the certified record, are as follows:    In 1998, Appellant was

convicted of two counts of attempted murder and related charges following a

standoff with police.    On October 13, 1998, the trial court imposed an

aggregate sentence of thirty to seventy-two years of imprisonment.           We

affirmed his judgment of sentence on October 4, 1999, and Appellant failed

to file a timely petition for allowance of appeal. Appellant filed his first PCRA

petition in 2001, and the PCRA court appointed counsel.         The PCRA court

denied the petition as untimely, and we affirmed. Ultimately, our Supreme
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granted Appellant’s petition for allowance of appeal, reversed this Court, and

remanded for an evidentiary hearing regarding the timeliness of Appellant’s

PCRA petition.

      Upon remand and based upon an agreement of the parties, the PCRA

court reinstated Appellant’s right to petition for allowance of appeal to our

Supreme Court. Thereafter, Appellant filed the petition, which our Supreme

Court denied on March 8, 2005.

      On January 4, 2006, Appellant filed his second PCRA petition, and the

PCRA court again appointed counsel. On October 20, 2006, the PCRA Court

dismissed the petition on its merits except for certain issues relating to his

original sentence.   At resentencing on December 1, 2006, the trial court

vacated Appellant’s original sentence on several counts and resentenced him

in a manner that did not affect his aggregate sentence.      Appellant filed a

timely appeal to this Court, we affirmed on December 2, 2008, and our

Supreme Court denied allowance of appeal on March 9, 2010.

      On July 10, 2015, Appellant pro se filed his third petition, and the

PCRA court once again appointed counsel.          Following the issuance of

Pa.R.Crim.P. 907 notice, the PCRA court denied the petition as untimely filed

on September 19, 2015. Appellant timely appealed to this Court, and PCRA

counsel filed a motion to withdraw. In an unpublished memorandum filed on

August 9, 2016, we affirmed the order denying post-conviction relief and

permitted counsel to withdraw.     Commonwealth v. Whitney, 156 A.3d

331 (Pa. Super. 2016) (unpublished memorandum).

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      On October 13, 2016, Appellant pro se filed a “Motion to Vacate Illegal

Sentence,” which the PCRA court correctly concluded should be treated as

untimely under the PCRA and dismissed on October 18, 2016.                See

Commonwealth v. Mercado, 826 A.2d 897, 898 (Pa. Super. 2003)

(concluding that the PCRA provides the sole means for obtaining relief from

an illegal sentence).     This timely appeal follows.   Both Appellant and the

PCRA court have complied with Pa.R.A.P. 1925.

      Appellant raises the following issues:

      1. Did the [PCRA] Court commit an err[or] of law by failing to
         correct an illegal sentence pursuant to 42 Pa.C.S.A. §9542?

      2. Since 42 Pa.C.S.A. §9712 has been declared unconstitutional,
         null and void is not the Court mandated to correct a patent
         err[or] in accordance with the holdings of the Pennsylvania
         Superior Court and Supreme Court?

      3. Since 42 Pa.C.S.A. §9712 is unconstitutional, [under] which
         Appellant was sentence[d,] [does Appellant] have a right to
         have his sentence vacated on those charges and
         resentenced?

Appellant’s Brief at 4.

      In order to address Appellant’s issues, we must first determine

whether the PCRA court correctly determined that Appellant’s serial petition

for post-conviction relief was untimely filed. This Court’s standard of review

regarding an order dismissing a petition under the PCRA is “to determine

whether the determination of the PCRA court is supported by the evidence of

record and is free of legal error.      The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

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Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013)

(citations omitted).

        Although Appellant challenges the legality of his sentence, this claim

still must be presented in a timely PCRA petition.         Commonwealth v.

Taylor, 65 A.3d 462, 465 (Pa. Super. 2013) (emphasis added).             This is

because the timeliness of a post-conviction petition is jurisdictional.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

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

is final unless the petition alleges, and the petitioner proves, that an

exception to the time for filing the petition, set forth at 42 Pa.C.S.A. sections

9545(b)(1)(i), (ii), and (iii), is met.1 42 Pa.C.S.A. § 9545. A PCRA petition

____________________________________________


1
    The exceptions to the timeliness requirement are:

        (i) the failure to raise the claim previously was the result of
        interference of 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.

(Footnote Continued Next Page)


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invoking one of these statutory exceptions must “be filed within 60 days of

the date the claims could have been presented.” See Hernandez, 79 A.3d

651-52 (citations omitted); see also 42 Pa.C.S.A. § 9545(b)(2).

      In a prior appeal, we determined that Appellant’s judgment of

sentence “became final on June 7, 2010, his final day to appeal to the United

States Supreme Court in the appellate proceedings that followed his

resentencing.”     Whitney, mem. op. at 9.          Therefore, Appellant needed to

file the PCRA petition at issue by June 7, 2011, in order for it to be timely.

As Appellant filed the instant petition on October 13, 2016, it is untimely

unless he has satisfied his burden of pleading and proving that one of the

enumerated exceptions applies. See Hernandez, supra.

      Appellant has failed to prove any exception to the PCRA’s time bar. He

asserts   the    applicability    of   the   newly-discovered   constitutional   right

exception provided in Section 9545(b)(iii). Specifically, he argues that he is

entitled to resentencing on charges in which mandatory minimums were

imposed pursuant to the United States Supreme Court’s decision in Alleyne

v. United States, 133 S. Ct. 2151 (2013). In Alleyne, the high court 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. Alleyne, 131 S.
                       _______________________
(Footnote Continued)

42 Pa.C.S.A. §§ 9545(b)(1)(i), (ii), and (iii).




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Ct. at 2160-61.    In light of this holding, subsequent case law from this

Court, as well as the Pennsylvania Supreme Court, have struck down

mandatory minimums that were to be applied at sentencing, including 42

Pa.C.S. section 9712. See Commonwealth v. Valentine, 101 A.3d 801,

812 (Pa. Super. 2014).

      Appellant’s claim fails for several reasons.      Initially, we note that

Appellant did not file his petition within sixty days of the 2013 Alleyne

decision. Moreover, to the extent Appellant argues he should benefit from

retroactive application of the United States Supreme Court’s decision in

Alleyne, supra, his claim fails.      Assuming arguendo the United States

Supreme Court recognized a new constitutional right in Alleyne, neither the

United States Supreme Court nor the Pennsylvania Supreme Court has held

the right applies retroactively to cases in which the judgment of sentence

had become final. See, generally, Commonwealth v. Whitehawk, 146

A.3d 266 (Pa. Super. 2016). Finally, our Supreme Court has unequivocally

held that Alleyne does not apply retroactively to cases, such as Appellant’s,

pending   on   collateral   review.   See   generally,       Commonwealth    v.

Washington, 142 A.3d 810 (Pa. 2016).

      Thus, for all of these reasons, the PCRA court correctly concluded that

it lacked jurisdiction to address Appellant’s serial PCRA petition.         We

therefore affirm its order denying post-conviction relief.

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/27/2017




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