J-S82043-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DANIEL R. WITUCKI,

                            Appellant                  No. 838 MDA 2016


                   Appeal from the Order Entered April 25, 2016
                  in the Court of Common Pleas of Tioga County
               Criminal Division at Nos.: CP-59-CR-0000033-1998
                             CP-59-CR-0000568-1998


BEFORE: OTT, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED NOVEMBER 14, 2016

        Appellant, Daniel R. Witucki, appeals pro se from the denial of his third

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546, as untimely. We affirm.

        On June 24, 1998,1 a jury convicted Appellant of first degree murder

for fatally shooting the victim with a rifle.        The trial court sentenced

Appellant to a term of life imprisonment the same day. This Court affirmed

Appellant’s judgment of sentence on July 15, 1999. (See Commonwealth

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*
    Retired Senior Judge assigned to the Superior Court.
1
  The trial court docket reflects that the verdict was entered on June 26,
1998. However, the jury announced the verdict in open court on June 24,
1998. (See N.T. Trial, 6/24/98, at 731-32).
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v. Witucki, 742 A.2d 1154 (Pa. Super. 1999)). The Pennsylvania Supreme

Court denied Appellant’s petition for allowance of appeal on November 24,

1999. (See Commonwealth v. Witucki, 747 A.2d 368 (Pa. 1999)).

     On November 29, 2000, Appellant filed his first PCRA petition pro se.

Appointed counsel filed an amended petition on June 25, 2001, which the

court denied on October 5, 2001. This Court affirmed the court’s order on

December 24, 2002, and our Supreme Court denied Appellant’s petition for

allowance of appeal on August 27, 2003. (See Commonwealth v. Witucki,

817 A.2d 1187 (Pa. Super. 2002), appeal denied, 829 A.2d 1157 (Pa.

2003)).

     On May 15, 2012, Appellant filed his second PCRA petition.        On

January 18, 2013, the court appointed PCRA counsel and scheduled a

hearing, after which it denied the petition. On December 24, 2013, a panel

of this Court affirmed the PCRA court’s order.   (See Commonwealth v.

Witucki, 93 A.3d 519 (Pa. Super. 2013)).    Appellant did not seek review

with our Supreme Court.

     Appellant filed a petition for writ of habeas corpus, which the PCRA

court denied on September 30, 2014.     A panel of this Court affirmed the

PCRA court’s denial on November 10, 2015.        (See Commonwealth v.

Witucki, 134 A.3d 486 (Pa. Super. 2015)).




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       On February 25, 2016, Appellant filed the instant petition for writ of

habeas corpus, which the PCRA court properly treated as a PCRA petition. 2

(See PCRA Court Notice of Intent to Dismiss, 3/31/16, at unnumbered page

1).   On March 31, 2016, the court sent Appellant notice of its intent to

dismiss the petition as untimely, with none of the timeliness exceptions

pleaded or proven. See Pa.R.Crim.P. 907(1). Appellant responded on April

11, 2016, and the court dismissed the petition on April 25, 2016. Appellant

timely appealed.3

       Appellant raises two questions for this Court’s review:

       A.     Whether the [PCRA] court abused its discretion in
       dismissing Appellant’s petition for writ of habeas corpus ad
       subjiciendum where the verdict announced by the court of guilty
       on the first degree murder offense was in error in that the court
       did not have jurisdiction of the matter, where the criminal
       information filed in this action were [sic] fatally defective since if
       [sic] failed to recite all of the essential elements of the offense
       and failed to inform Appellant of the precise charge he was
       required to defend against at trial?

       B.     Whether Appellant is illegally confined based on the verdict
       and sentence being vitiated and non-existent as a result of the
       fatally defective criminal information and eliminates all questions
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2
  “Unless the PCRA could not provide for a potential remedy, the PCRA
statute subsumes the writ of habeas corpus.”      Taylor, infra, at 465-66
(citations omitted). Here, Appellant challenged the legality of his sentence
and the jurisdiction of the trial court. (See Petition for Writ of Habeas
Corpus, 2/25/16, at 4-5). These claims are cognizable under the PCRA.
See 42 Pa.C.S.A. §§ 9542, 9543(a)(2)(viii).
3
  Pursuant to the PCRA court’s order, Appellant filed a timely statement of
errors complained of on appeal on July 1, 2016. See Pa.R.A.P. 1925(b).
The court filed an opinion on July 22, 2016. See Pa.R.A.P. 1925(a).



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      of waiver, timeliness[,] and due diligence as bars to the relief
      sought?

(Appellant’s Brief, at 3) (unnecessary capitalization and emphasis omitted).

      Before we reach the merits of Appellant’s questions, we must

determine whether the PCRA court properly determined that his petition was

untimely, and that therefore it lacked jurisdiction to decide its merits.

            We review an order dismissing a petition under the PCRA
      in the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court
      and the evidence of record. We will not disturb a PCRA court’s
      ruling if it is supported by evidence of record and is free of legal
      error. This Court may affirm a PCRA court’s decision on any
      grounds if the record supports it. We grant great deference to
      the factual findings of the PCRA court and will not disturb those
      findings unless they have no support in the record. However, we
      afford no such deference to its legal conclusions. Further, where
      the petitioner raises questions of law, our standard of review is
      de novo and our scope of review is plenary.

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2013), appeal

denied, 64 A.3d 631 (Pa. 2013) (citations omitted).

      Here, the PCRA court found that Appellant’s instant PCRA petition was

untimely and that he failed to plead and prove any exception to the PCRA

time-bar. (See PCRA Ct. Notice of Intent to Dismiss, at unnumbered page

2). We agree.

      It is well-settled that:

      A PCRA petition, including a second or subsequent one, must be
      filed within one year of the date the petitioner’s judgment of
      sentence became final, unless he pleads and proves one of the
      three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
      judgment becomes final at the conclusion of direct review by this
      Court or the United States Supreme Court, or at the expiration

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      of the time for seeking such review.             42 Pa.C.S.[A.] §
      9545(b)(3).        The PCRA’s timeliness requirements are
      jurisdictional; therefore, a court may not address the merits of
      the issues raised if the petition was not timely filed.          The
      timeliness requirements apply to all PCRA petitions, regardless of
      the nature of the individual claims raised therein. The PCRA
      squarely places upon the petitioner the burden of proving an
      untimely petition fits within one of the three exceptions. . . .

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations

and footnote omitted).

      In the case sub judice, Appellant’s judgment of sentence became final

on February 23, 2000, at the expiration of the time for him to seek review of

his judgment of sentence in the United States Supreme Court.          See U.S.

Sup.Ct. R. 13, 28 U.S.C.A.; 42 Pa.C.S.A. § 9545(b)(3). Therefore, he had

one year from that date, until February 23, 2001, to file a petition for

collateral relief unless he pleaded and proved that a timing exception

applied. See 42 Pa.C.S.A. §§ 9545(b)(1)(i)-(iii). Hence, Appellant’s current

petition, filed on February 25, 2016, is untimely on its face unless he pleads

and proves one of the statutory exceptions to the time-bar.

      Section 9545 of the PCRA provides only three exceptions that allow for

review of an untimely PCRA petition: (1) the petitioner’s inability to raise a

claim because of governmental interference; (2) the discovery of previously

unknown facts that would have supported a claim; and (3) a newly-

recognized constitutional right. See id. When a petition is filed outside the

one-year time limit, petitioners must plead and prove the applicability of one

of   the   three   exceptions   to   the   PCRA   timing   requirements.     See

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Commonwealth v. Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012) (“If

the petition is determined to be untimely, and no exception has been pled

and proven, the petition must be dismissed without a hearing because

Pennsylvania courts are without jurisdiction to consider the merits of the

petition.”) (citation omitted).        Also, a PCRA petition invoking one of these

statutory exceptions must “be filed within [sixty] days of the date the claim

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

       In the case before us, Appellant acknowledges that his petition is

untimely. (See Appellant’s Brief, at 11). However, he fails even to attempt

to plead any of the exceptions to the timeliness requirements. (See id. at

7-15). Instead, he maintains that his petition is not time-barred because he

was illegally sentenced and confined. (See id.). This claim fails.

       It is well-settled that, “although illegal sentencing issues cannot be

waived,     they   still   must   be    presented   in   a   timely   PCRA   petition.”

Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa. Super. 2013) (citation

omitted).    Therefore, Appellant’s argument lacks merit.4            Hence, because

Appellant utterly fails to meet his burden of pleading and proving the

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4
  Moreover, Appellant’s argument that he properly sought relief in a habeas
corpus petition because he is time-barred by the PCRA, (see Appellant’s
Brief, at 11), is equally specious. See Taylor, supra at 466 (“Issues that
are cognizable under the PCRA must be raised in a timely PCRA petition and
cannot be raised in a habeas corpus petition.          Phrased differently, a
defendant cannot escape the PCRA time-bar by titling his petition or motion
as a writ of habeas corpus.”) (citations and footnote omitted).



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applicability of a timeliness exception, the PCRA court properly dismissed his

petition as untimely. See Jones, supra at 16-17; Rykard, supra at 1183;

Johnston, supra at 1126.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2016




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