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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEVIN TYLER WHITTLE,
Appellant No. 1532 WDA 2014
Appeal from the PCRA Order entered August 18, 2014,
in the Court of Common Pleas of Butler County,
Criminal Division, at No(s): CP-10-CR-0000244-2006
BEFORE: FORD ELLIOTT, P.J.E., BOWES, and ALLEN, JJ.
MEMORANDUM BY ALLEN, J.: FILED FEBRUARY 10, 2015
Kevin Tyler Whittle (“Appellant”) appeals from the order denying his
untimely petition for post-conviction relief filed pursuant to the Post
Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.
The pertinent facts and procedural history are as follows:
On January 5, 2006, Pennsylvania State Trooper Brian
G. Crouch received information from an anonymous source
that [Appellant] and his former girlfriend, co-conspirator
Cassandra Cunningham, were selling heroin from a home
at 328 North Broad Street in Butler, PA. Based on this
information, Trooper Crouch, with the assistance of a
confidential informant, arranged two controlled purchases
of heroin from [Appellant] and Cunningham. After the
second purchase, on January 12, 2006, the trooper applied
for a search warrant for 328 North Broad Street. The
warrant was executed on January 13, 2006, and narcotics
and firearms were recovered from the house. Appellant,
who arrived at the residence approximately five to ten
minutes after the search began, was arrested and
subsequently charged with, inter alia, possession with
intent to deliver heroin, delivery of heroin, possession of
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drug paraphernalia, criminal conspiracy, and violations of
the Uniform Firearms Act.
Appellant filed an omnibus pretrial motion seeking
suppression of the evidence obtained during the execution
of the search warrant, as well as a statement [Appellant]
made to the police at the time of his arrest. The motion
was denied by the trial court on June 12, 2006. Two
months later, on August 24, 2006, a jury found [Appellant]
guilty of all charges. Appellant was sentenced, on
September 28, 2006, to an aggregate term of
imprisonment of 14½ years to 29 years. Appellant filed a
post-sentence motion, which was denied by the trial court
on February 1, 2007. [While his counseled post-sentence
motion was pending, Appellant filed a pro se PCRA petition
that the trial court promptly denied as premature].
Commonwealth v. Whittle, 951 A.2d 1220 (Pa. Super. 2008), unpublished
memorandum at 1-3 (footnotes omitted).
Pertinent to his present appeal, Appellant’s aggregate sentence
included a mandatory minimum sentence of five years for Appellant’s
possession with intent to deliver conviction, pursuant to 18 Pa.C.S.A. § 7508
and 42 Pa.C.S.A. § 9712.1. See Sentence, 9/28/06, at 1.
Appellant filed a timely direct appeal to this Court. On February 15,
2008, we rejected Appellant’s claims, and affirmed his judgment of
sentence. Whittle, supra. On August 6, 2008, our Supreme Court denied
Appellant’s petition for allowance of appeal. Commonwealth v. Whittle,
2008 Pa. LEXIS 1242, ___ A.2d ___ (Pa. 2008).
Appellant filed a pro se PCRA petition on November 6, 2009. The
PCRA court appointed counsel, and PCRA counsel subsequently filed a “no-
merit” letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
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1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc). Subsequently, the PCRA court permitted PCRA counsel to withdraw,
and dismissed Appellant’s PCRA petition on June 3, 2010. Appellant filed a
timely appeal. In an unpublished memorandum filed on April 20, 2011, this
Court affirmed the PCRA court’s order denying Appellant post-conviction
relief. Commonwealth v. Whittle, 29 A.3d 841 (Pa. Super. 2010).
Appellant did not file a petition for allowance of appeal with our Supreme
Court.
On December 9, 2013, Appellant filed a second pro se PCRA petition.
On December 20, 2013, the PCRA court issued Pa.R.Crim.P. 907 notice of its
intent to dismiss Appellant’s second PCRA petition because it was untimely,
and Appellant failed to prove an exception to the PCRA’s time-bar. Rather
than file a response to the PCRA court’s notice, Appellant filed an appeal to
this Court. We quashed the appeal because there was no final order
entered. By order entered August 18, 2014, the PCRA court denied
Appellant’s second PCRA petition. This timely appeal followed. Both
Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
This Court’s standard of review regarding an order dismissing a
petition under the PCRA is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA
court’s findings will not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,
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1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold a
hearing on the petition if the PCRA court determines that the petitioner’s
claim is patently frivolous and is without a trace of support in either the
record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011
(Pa. Super. 2001).
Before addressing the issues Appellant presents on appeal, we must
first consider whether the PCRA court properly determined that Appellant’s
petition was untimely. The timeliness of a post-conviction petition is
jurisdictional. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa.
2010) (citation omitted). Thus, if a petition is untimely, neither an appellate
court nor the PCRA court has jurisdiction over the petition. Id. “Without
jurisdiction, we simply do not have the legal authority to address the
substantive claims” raised in an untimely petition. Id.
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
becomes final unless the petition alleges, and the petitioner proves, an
exception to the time for filing the petition. Commonwealth v. Gamboa-
Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under
these exceptions, the petitioner must plead and prove that: “(1) there has
been interference by government officials in the presentation of the claim; or
(2) there exists after-discovered facts or evidence; or (3) a new
constitutional right has been recognized.” Commonwealth v. Fowler, 930
A.2d 586, 591 (Pa. Super. 2007) (citations omitted). A PCRA petition
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invoking one of these statutory exceptions must “be filed within sixty days of
the date the claim first could have been presented.” Gamboa-Taylor, 753
A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to
the time restrictions of the PCRA must be pled in the petition, and may not
be raised for the first time on appeal. Commonwealth v. Burton, 936
A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not
raised before the lower court are waived and cannot be raised for the first
time on appeal.”).
Appellant’s judgment of sentence became final on November 4, 2008,
when the ninety-day period for filing a writ of certiorari with the United
States Supreme Court expired. See U.S.Sup.Ct.R. 13; 42 Pa.C.S.A. §
9545(b)(3). Therefore, Appellant had to file the PCRA petition at issue by
November 4, 2009 in order for it to be timely. As Appellant filed the instant
petition on December 13, 2013, it is untimely unless he has satisfied his
burden of pleading and proving that one of the enumerated exceptions
applies. See Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa.
1999).
Appellant has failed to prove the applicability of any of the exceptions
to the PCRA’s time restrictions. Appellant contends that his PCRA falls under
the exception of subsection 9545(b)(1)(iii) because the United States
Supreme Court recognized a new constitutional right in Alleyne v. United
States, 133 S.Ct. 2151 (2013). In Alleyne, the high court held that “facts
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that increase mandatory minimum sentences must be submitted to the
jury.” Alleyne, 133 S.Ct. at 2163. Appellant’s claim fails for two reasons.
First, Alleyne was decided on June 17, 2013. As recognized by the
PCRA court, see PCRA Court Opinion, 12/20/13, at 1-2, Appellant did not file
the instant PCRA petition until almost six months later, well outside the
PCRA’s requirement. See Gamboa-Taylor, supra; 42 Pa.C.S.A. §
9545(b)(2). Appellant cites no authority for his claim that his tardiness
should be excused because he was unrepresented by counsel. See
Appellant’s Brief at 30-31.1
Second, in the similar case of Commonwealth v. Miller, 102 A.3d
988 (Pa. 2014), we rejected a PCRA petitioner’s attempt to rely upon the
Alleyne decision:
Even assuming that Alleyne did announce a new
constitutional right, neither our Supreme Court, not 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. This is fatal to
[Miller’s] argument regarding the PCRA time-bar. 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 our Supreme
Court specifically holds it to be retroactively applicable
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1
For this same reason, we reject Appellant’s claim that he had sixty days
from this Court’s decision in Commonwealth v. Newman, 99 A.3d 86 (Pa.
Super. 2014) (en banc) to file his PCRA petition. See Appellant’s Brief at
31.
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to those cases. Commonwealth v. Phillips, [] 31
A.3d 317, 320 (Pa. Super. 2011), appeal denied, 615
Pa. 784, 42 A.3d 1059 (Pa. 2012), citing Tyler v. Cain,
533 U.S. 656, 663, 121 S.Ct 2478, 150 L.Ed. 2d 632
(2001); see also, e.g., Commonwealth v. Taylor, []
933 A.2d 1035, 1042 (Pa. Super. 2007) (stating "for
purposes of [42 Pa.C.S.A. § 9545(b)(1)(iii)], the
language ‘has been held by that court to apply
retroactively’ means the court announcing the rule must
have also ruled on the retroactivity of the new
constitutional right, before the petitioner can assert
retroactive application of the right in a PCRA
petition[]”), appeal denied, 597 Pa. 715, 951 A.2d 1163
(Pa. 2008). Therefore, [Miller] has failed to satisfy the
new constitutional right exception to the time bar.
We are aware that an issue pertaining to Alleyne
goes to the legality of the sentence. See
Commonwealth v. Newman, 99 A.3d 86, [90] (Pa.
Super. 2014) (en banc) (stating, “a challenge to a
sentence premised upon Alleyne likewise implicates the
legality of the sentence and cannot be waived on
appeal[]”). It is generally true that “this Court is
endowed with the ability to consider an issue of
illegality of sentence sua sponte.” Commonwealth v.
Orellana, [] 86 A.2d 877, 883 n.7 (Pa. Super. 2014)
(citation omitted). However, in order for this Court to
review a legality of sentence claim, there must be a
basis for our jurisdiction to engage in such a review.
See Commonwealth v. Borovichka, [] 18 A.3d 1242,
1254 (Pa. Super. 2011) (stating, “[a] challenge to the
legality of a sentence . . . may be entertained as long
as the reviewing court has jurisdiction[]”) (citation
omitted). As this Court recently noted, “[t]hough not
technically waivable, a legality [of sentence] claim may
nevertheless be lost should it be raised . . . in an
untimely PCRA petition for which no time-bar exception
applies, thus depriving the court of jurisdiction over the
claim.” [Commonwealth v. Seskey, 96 A.3d 237,
242 (Pa. Super. 2014)]. As a result, the PCRA court
lacked jurisdiction to consider the merits of [Miller’s]
second PCRA petition, as it was untimely filed and no
exception was proven.
Miller, 102 A.3d at 995-96 (footnote omitted).
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The above discussion in Miller explains the second reason why
Appellant’s attempt to meet the PCRA’s time bar pursuant to § 9545(b)(iii)
fails.
In sum, Appellant’s PCRA petition is facially untimely, and he has failed
to meet his burden of proof with regard to any exception to the timeliness
requirements of the PCRA. We therefore affirm the PCRA court’s denial of
Appellant’s petition for post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2015
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