J-A18014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT
                                                       OF PENNSYLVANIA
                             Appellee

                        v.

 MARK WHITAKER

                             Appellant                 No. 1517 EDA 2017


               Appeal from the PCRA Order entered April 19, 2017
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0413791-2002


BEFORE: STABILE, J., STEVENS, P.J.E.,* and STRASSBURGER, J.**

MEMORANDUM BY STABILE, J.:                        FILED DECEMBER 31, 2018

       Appellant, Mark Whitaker, appeals pro se from the April 19, 2017 order

of the Court of Common Pleas of Philadelphia County dismissing as untimely

his petition for collateral relief under the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-46, and denying his habeas corpus claim. We affirm.

       The facts of the case are not at issue here. We summarized the relevant

facts in our opinion issued in connection with Appellant’s direct appeal. See

Commonwealth v. Whitaker, 878 A.2d 914 (Pa. Super. 2005). On June 30,

2005, we affirmed the judgment of sentence. On December 21, 2005, the

Supreme Court denied allocatur.


____________________________________________


* Former Justice specially assigned to the Superior Court.

** Retired Senior Judge assigned to the Superior Court.
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          Appellant filed his first PCRA petition on October 26, 2006. The PCRA

court denied it on March 19, 2009. On appeal, we reversed in part, remanding

to the PCRA court to address one issue (ineffective assistance of counsel).

See Commonwealth v Whitaker, No. 1027 EDA 2009, unpublished

memorandum (Pa. Super. filed July 1, 2010).

          On remand, after holding a hearing, the PCRA court denied Appellant’s

petition on October 7, 2011. Appellant timely appealed the denial of PCRA

relief.

          On December 29, 2011, while the appeal on the denial of his first PCRA

petition was still pending, Appellant filed another PCRA petition, his second,

alleging “newly-discovered” facts (alibi witness). Other than the filing itself,

there is no indication that Appellant pursued the second petition, even after

the disposition of the appeal on the first PCRA petition.

          On December 13, 2012, we affirmed the order of the PCRA court denying

Appellant’s first petition. See Commonwealth v. Whitaker, No. 3139 EDA

2011, unpublished memorandum (Pa. Super. filed December 13, 2012).

          On June 21, 2013, Appellant filed a petition for leave to file a petition

for allowance of appeal nunc pro tunc.

          On August 22, 2013, a civil action commenced by Appellant in the civil

division of the trial court was transferred to the criminal division. In his civil

action, Appellant alleged that his judgment of sentence was illegal for lack of




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authority to impose it, and his detention was unlawful on due process grounds

for lack of a sentencing order.1

       On September 6, 2013, the Supreme Court granted Appellant’s petition

for allowance of appeal nunc pro tunc. Appellant promptly proceeded to file

his petition for allowance of appeal. The Supreme Court denied allocatur on

March 11, 2014.

       On February 22, 2017, the PCRA court issued a notice pursuant to

Pa.R.Crim.P. 907 notifying Appellant of its intention to deny the August 22,

2013 petition (as supplemented), his third PCRA petition, on timeliness

grounds to the extent he challenged the legality of his sentence. Regarding

the legality of his detention claim, the court, treating it as subject to habeas

corpus review, and similarly concluded that Appellant was not entitled to relief.

       On March 6, 2017, Appellant filed an objection to the notice, challenging

the PCRA court’s characterization of his lack of a sentencing order claim as a

claim falling within the purview of the PCRA.

       The PCRA court dismissed Appellant’s third PCRA petition on April 19,

2017, and denied the habeas corpus claim. This appeal followed.

       On appeal, Appellant raises three issues: (i) his judgment of sentence

is illegal for lack of authority to impose it, (ii) his detention was unlawful for




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1 On December 10, 2013, Appellant supplemented his August 22, 2013 filing
alleging, in addition, fraud and violation of due process of law. See “Motion
for Leave of Court to File a Supplemental Act,” 12/10/13.

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lack of a sentencing order, and, (iii) the PCRA court failed to address the

“newly-discovered” fact, which he raised in his second petition.

      All PCRA petitions, “including a second or subsequent petition, shall be

filed within one year of the date the judgment becomes final.” 42 Pa.C.S.A.

§ 9545(b)(1). The one-year time limitation, however, can be overcome if a

petitioner (1) alleges and proves one of the three exceptions set forth in

Section 9545(b)(1)(i)-(iii) of the PCRA, and (2) files a petition raising this

exception within sixty days of the date the claim could have been presented.

42 Pa.C.S.A. § 9545(b)(2).

      “The PCRA’s time restrictions are jurisdictional in nature. Thus, [i]f a

PCRA petition is untimely, neither this Court nor the [PCRA] court has

jurisdiction over the petition. Without jurisdiction, we simply do not have the

legal authority to address the substantive claims.”        Commonwealth v.

Chester, 895 A.2d 520, 522 (Pa. 2006) (first alteration in original) (internal

citations and quotation marks omitted). As timeliness is separate and distinct

from the merits of Appellant’s underlying claims, we first determine whether

this PCRA petition is timely filed. See Commonwealth v. Stokes, 959 A.2d

306, 310    (Pa.   2008) (consideration of      Brady    claim separate     from

consideration of its timeliness).   The timeliness requirements of the PCRA

petition must be met, even if the underlying claim is a challenge to the legality

of the sentence.   See Commonwealth v. Holmes, 933 A.2d 57, 60 (Pa.

2007) (“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

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exceptions thereto”) (citing Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa.

1999)).

       Instantly, Appellant’s judgment of sentence became final on March 21,

2006, when the ninety-day period for filing a writ of certiorari with the United

States Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct.R.

13.     Appellant filed the instant PCRA petition on August 22, 2013,

approximately seven years after his judgment of sentence became final. As

such, the instant petition is patently untimely, unless Appellant pleaded and

proved that one of the enumerated exceptions applies.

       Appellant failed to plead and prove the applicability of any exception to

the PCRA’s time restrictions. This omission is fatal to his PCRA claims subject

the instant appeal. See Commonwealth v. Wilson, 824 A.2d 331, 336 (Pa.

Super. 2003) (“Appellant’s failure to timely file his PCRA petition, and his

failure to invoke any of the exceptions to the timeliness requirements of the

PCRA, results in an untimely PCRA petition under any analysis.”); Holmes,

supra.

       Accordingly, to the extent, Appellant challenges the legality of his

sentence for lack of statutory authority to impose it, we conclude the PCRA

court properly denied the instant petition as untimely.2

____________________________________________


2Appellant argues that he did not address the timeliness of the instant petition
because the petition was originally filed as a civil action and only subsequently
(approximately two weeks later) was transferred to the criminal division of the
same court. Although Appellant was aware that the original action would be



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       Appellant next challenges the court’s decision to deny relief on the

absence of a sentencing order claim.           As noted, Appellant argues that the

absence of a sentencing order violates his due process rights, making his

detention unlawful.

       “The Pennsylvania Supreme Court, albeit in a per curiam opinion, has

held that a claim that a defendant’s sentence is illegal due to the inability of

the DOC to ‘produce a written sentencing order related to [his] judgment of

sentence’ constitutes a claim legitimately sounding in habeas corpus.”

Joseph v. Glunt, 96 A.3d 365, 368 (Pa. Super. 2014) (citations omitted).3
____________________________________________


treated as a PCRA petition before the criminal division of the trial court, see
Appellant’s Brief at 9, at no time did Appellant attempt to establish the
timeliness of his petition until the PCRA court denied it on grounds of
timeliness.

3 In Joseph, appellant argued that the absence of a sentencing order, in
violation of 42 Pa.C.S.A. § 9764 (relating to information required upon
confinement and subsequent disposition), resulted in a violation of his due
process rights, compelling his release from prison. We disagreed, noting:

       The language and structure of section 9764, viewed in context,
       make clear that the statute pertains not to the [Department of
       Corrections]’s authority to detain a duly-sentenced prisoner, but,
       rather, sets forth the procedures and prerogatives associated with
       the transfer of an inmate from county to state detention. None of
       the provisions of section 9764 indicate[s] an affirmative obligation
       on the part of the [Department of Corrections] to maintain and
       produce the documents enumerated in subsection 9764(a) upon
       the request of the incarcerated person. Moreover, section
       9764 neither expressly vests, nor implies the vestiture, in a
       prisoner of any remedy for deviation from the procedures
       prescribed within.

Joseph, 96 A.3d at 371 (footnote omitted).


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      When reviewing the denial of a petition for a writ of habeas corpus, we

are guided by the following:

      Our standard of review of a trial court’s order denying a petition
      for writ of habeas corpus is limited to abuse of discretion.
      See Commonwealth, Dep't of Corrections v. Reese, 774 A.2d
      1255, 1261 (Pa. Super. 2001). Thus, we may reverse the court's
      order where the court has misapplied the law or exercised its
      discretion in a manner lacking reason.            See Lachat v.
      Hinchcliffe, 769 A.2d 481, 487 (Pa. Super. 2001) (defining
      abuse of discretion). As in all matters on appeal, the appellant
      bears the burden of persuasion to demonstrate his entitlement to
      the relief he requests. See Miller v. Miller, 744 A.2d 778, 788
      (Pa. Super. 1999).

Commonwealth ex rel. Fortune v. Dragovich, 792 A.2d 1257, 1259 (Pa.

Super. 2002), appeal denied, 803 A.2d 732 (Pa. 2002).

      Even in the absence of a sentencing order, it is well-established that the

Department of Corrections has continuing authority to detain an inmate

where, as in the instant matter, there is a record of a valid imposition of

sentence. Notice, 2/22/17 at 1 (citing Joseph, 96 A.3d at 372); PCRA Court

Opinion, 5/30/17, at 4-5 (relying on Joseph, supra, the PCRA court found,

“Upon review, the [presiding judge] entered a sentencing order in this matter

on December 29, 2003 and [Appellant]’s sentence was accurately docketed.”).

      In light of the foregoing, we conclude Appellant is not entitled to any

relief on his habeas corpus claim.

      Finally, Appellant argues the PCRA court erred in not addressing his

“newly-discovered fact” claim, which, as noted, was raised in his second PCRA

petition. A review of the record indicates that Appellant did not pursue the

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claim before the PCRA court, despite having multiple opportunities and the

time to do so. Among other things, Appellant did not raise the second PCRA

petition issue in his response to the PCRA court’s Rule 907 notice, and did not

file a Rule 1925(a) statement. The issue is therefore waived. See Pa.R.A.P.

302(a) (“Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal”); Commonwealth v. Paddy, 15 A.3d 431, 446

(Pa. 2011) (“[f]ailure to raise an issue before the PCRA court results in

waiver.”); Commonwealth v. Pitts, 981 A.2d 875, 879 (Pa. 2009)

(Defendant waived his appellate argument challenging the adequacy of PCRA

counsel’s no-merit letter, where defendant failed to raise the issue within the

20-day period provided by rule to file a reply before the court dismissed the

post-conviction petition).

      Order affirmed.

      President Judge Emeritus Stevens joins the memorandum.

      Judge Strassburger concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/31/18




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