J-S65040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SHAWN WHITENIGHT,

                            Appellant                 No. 378 WDA 2016


                Appeal from the PCRA Order February 11, 2016
               in the Court of Common Pleas of Jefferson County
               Criminal Division at No.: CP-33-CR-0000001-2014


BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED SEPTEMBER 1, 2016

        Appellant, Shawn Whitenight, appeals pro se from the order dismissing

his second petition pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541–9546, as untimely filed.        Appellant has also filed an

application to strike the entry of appearance of the prosecutor. We deny the

application as moot, and affirm the order of dismissal.

        On May 16, 2014, Appellant entered a counseled guilty plea to one

count of attempted kidnapping1 and received a negotiated sentence of not

less than forty-eight nor more than ninety-six months’ incarceration in a
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*
    Retired Senior Judge assigned to the Superior Court.
1
  Pertinent to an issue raised on appeal, Appellant admitted the attempted
kidnap, but denied using a gun. (See N.T. Plea and Sentencing, 5/16/14, at
9).
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state correctional institution, followed by a term of twelve years’ probation.2

(See N.T. Plea and Sentencing, 5/16/14, at 12; see also Sentence,

5/19/14). He did not file post-sentence motions or a direct appeal.

       Appellant’s first, counseled PCRA petition, filed on May 11, 2015, was

dismissed on August 20, 2015, after notice pursuant to Pa.R.Crim.P. 907.

He filed the instant second petition pro se on January 4, 2016. After Rule

907 notice and Appellant’s written objection, the PCRA court dismissed the

petition on February 11, 2016.            Appellant timely appealed, on March 7,

2016.3

       Appellant presents two questions for our review:

             I.   Whether the trial court erred when it dismissed
       Appellant’s second PCRA petition as being untimely and not
       meeting any of the statutory exceptions?

              II. Whether the trial court erred in sentencing Appellant to
       an illegal sentence?


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2
  As part of the plea, the Commonwealth nolle prossed eleven remaining
charges, including the more serious charge of actual kidnapping. (See id. at
12).   Also as part of the negotiated plea, the Commonwealth waived
Appellant’s ineligibility for RRRI, making him RRRI eligible at forty months.
(See id. at 9, 13).
3
  Appellant filed a timely concise statement of errors on March 29, 2016.
See Pa.R.A.P. 1925(b). The PCRA court filed an opinion on March 31, 2016,
referencing its opinion and order filed on February 11, 2016 in support of the
notice of intent to dismiss Appellant’s second PCRA petition. See Pa.R.A.P.
1925(a).




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(Appellant’s Brief, at 7).4

              In conducting review of a PCRA matter, we consider the
        record in the light most favorable to the prevailing party at the
        PCRA level. Our review is limited to the evidence of record and
        the factual findings of the PCRA court. This Court will afford
        great deference to the factual findings of the PCRA court and will
        not disturb those findings unless they have no support in the
        record. Thus, when a PCRA court’s ruling is free of legal error
        and is supported by record evidence, we will not disturb its
        decision. Of course, if the issue pertains to a question of law,
        our standard of review is de novo and our scope of review is
        plenary.

Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super. 2015), appeal

denied, 125 A.3d 1201 (Pa. 2015) (citation and internal quotation marks

omitted).

        Here, liberally construed, Appellant argues in effect that his sentence

is illegal because, he claims, he was sentenced pursuant to a deadly

weapons enhancement (DWE).               (See Appellant’s Brief, at 14, 17).               He

maintains     that    a   DWE      sentence        is     constitutionally   infirm   under

Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc),

appeal denied, 121 A.3d 496 (Pa. 2015). (See id. at 11).

        Newman, a direct appeal decided on August 20, 2014, held that a

mandatory      minimum      sentencing         statute,    42   Pa.C.S.A.    §   9712.1,   is

unconstitutional under the United States Supreme Court’s holding in Alleyne



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4
    The Commonwealth did not file a brief in this appeal.



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v. United States, 133 S. Ct. 2151 (2013).5 See Newman, supra at 103.

Alleyne held that any fact that, by law, increases the mandatory minimum

penalty for a crime is an “element” that must be submitted to the jury and

found beyond a reasonable doubt. Alleyne, supra at 2155.6

       However, before we may review the merits of Appellant’s claims, we

must consider whether the instant PCRA petition is timely. The timeliness of

a PCRA petition is a threshold question that implicates the jurisdiction of a

court to consider the merits of the relief requested. See Commonwealth

v. Davis, 86 A.3d 883, 887 (Pa. Super. 2014).

       To be timely, a PCRA petition must be filed within one year of the date

that the petitioner’s judgment of sentence became final, unless the petition


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5
  We note that Alleyne, decided on June 17, 2013, was already controlling
authority when Appellant entered his plea and received his negotiated
sentence on May 16, 2014.
6
   Even if Appellant’s claim was cognizable, his reliance on Alleyne and
Newman would be misplaced. On independent review it is abundantly clear
that the sentencing court did not sentence under the DWE. (See N.T. Plea
and Sentencing, at 11). The Guideline Sentence Form confirms that the
court did not factor in a DWE. (See Guideline Sentence Form, 8/13/14).
Moreover, this Court has already decided that a trial court may find that the
deadly weapon enhancement applies without offending Alleyne. See
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1270 n.10 (Pa. Super.
2014) (en banc); see also Commonwealth v. Valentine, 101 A.3d 801,
813 (Pa. Super. 2014) (Gantman, P.J., concurring). In any event, Alleyne
is not retroactive. See Commonwealth v. Washington, No. 37 EAP 2015,
2016 WL 3909088, at *8 (Pa. filed July 19, 2016) (holding that Alleyne
does not apply retroactively to cases pending on collateral review). (See
also n.8, infra).



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alleges and the petitioner pleads and proves one or more of the following

statutory exceptions:

               (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).

         The PCRA petitioner bears the burden to plead and prove that one of

the timeliness exceptions applies. In addition, a petition invoking any of the

timeliness exceptions must be filed within sixty days of the date the claim

first could have been presented.               See 42 Pa.C.S.A. § 9545(b)(2).         A

petitioner fails to satisfy the sixty–day requirement of Section 9545(b) if he

or she fails to explain why, with the exercise of due diligence, the claim

could not have been filed earlier. See Commonwealth v. Marshall, 947

A.2d 714, 719–20 (Pa. 2008).

         “[A]n untimely petition may be received when the petition alleges, and

the petitioner proves, that any of the three limited exceptions to the time for

filing   the   petition,   set   forth   at    [42   Pa.C.S.A.   §   9545]   are   met.”




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Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) (footnote

omitted).

        Here, as already noted, Appellant was sentenced on May 16, 2014. He

did not file a direct appeal. Therefore, his sentence became final on June

16, 2014, after the thirty day period to file an appeal expired.7       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[ ]”).       Accordingly, Appellant had

until June 16, 2015 to file a timely PCRA petition.

        Consequently, the instant PCRA petition, filed on January 4, 2016, is

untimely on its face unless Appellant pleads and proves one of the statutory

exceptions to the time-bar.           Liberally construed, Appellant argues that

because his sentence is illegal his petition was timely and he is entitled to a

remand for resentencing. (See Appellant’s Brief, at 18). We disagree.

        “Although 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, Appellant’s contention is easily dismissed.”

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (citation omitted).



____________________________________________


7
    June 15, 2014 fell on a Sunday.



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       Aside from the bald claim of illegality, Appellant fails to plead or prove

any of the three recognized statutory exceptions to the PCRA time-bar.

Furthermore, Appellant failed to file his petition within sixty days of the filing

of the decisions he now cites as authority. See 42 Pa.C.S.A. § 9545(b)(2).

       Appellant claims limited access to the prison law library.           (See

Appellant’s Brief, at 12-13). This does not provide a basis for relief from the

statutory time-bar. See Commonwealth v. Baldwin, 789 A.2d 728, 731

(Pa. Super. 2001), appeal denied, 863 A.2d 1141 (Pa. 2004) (holding that

“Neither the court system nor the correctional system is obliged to educate

or update prisoners concerning changes in case law.”). Appellant’s petition

was untimely filed with no statutory exception to the time-bar pleaded and

proven.8

       Finally, as previously noted, Appellant has filed an application to strike

the entry of appearance of the prosecutor, claiming a conflict of interest.
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8
  Moreover, we note for clarity and completeness that the factual premise of
Appellant’s claims, that he was sentenced under a DWE, is belied by the
record. As already noted, Appellant admitted the negotiated count of
attempted kidnap, but denied using a gun. (See N.T. Plea and Sentence
Hearing, 5/16/14, 9). As expressly noted by the trial court, Appellant
received the sentence negotiated as part of a plea agreement. (See id. at
11). Even if the Commonwealth may have considered the DWE guidelines in
formulating the proposed sentence, which Appellant accepted, any such
preliminary consideration, without more, does not convert a negotiated,
favorable sentence into an illegal one. The trial court also noted for the
record that the agreed on sentence fell within, or just above, the standard
range. No enhancement was considered or imposed by the court. (See
id.). The sentencing order contains no reference to a DWE. (See Sentence,
5/19/14; see also n.6 supra).



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(See   Application    to   Strike   July   14,   2016   Entry   of   Appearance   by

Commonwealth Attorney Carlini, 7/19/16, at 1-2).                With no supporting

evidence, and claiming only unspecified personal knowledge, he alleges

various purported wrongdoings by the prosecutor’s husband at a previous

place of employment. He requests an investigation.

       Lacking any basis in law or fact, the application is frivolous.

Furthermore, except for the implicit inference of spousal influence, Appellant

fails to assert, let alone develop, any connection to the instant appeal.

Leaving aside the technical and substantive defects of the application, the

issue is moot.       The prosecutor did not file a brief on behalf of the

Commonwealth. “An issue before a court is moot if in ruling upon the issue

the court cannot enter an order that has any legal force or effect.”

Deutsche Bank Nat. Co. v. Butler, 868 A.2d 574, 577 (Pa. Super. 2005)

(quoting Rivera v. Pa. Dep’t of Corr., 837 A.2d 525, 527 (Pa. Super.

2003)).

       Order affirmed. Application denied as moot.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/1/2016




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