J-S06030-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANDREW WITMAN
Appellant No. 1450 MDA 2015
Appeal from the PCRA Order August 12, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0005536-2011
BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MUNDY, J.: FILED FEBRUARY 11, 2016
Appellant, Andrew Witman, appeals pro se from the August 12, 2015
order dismissing, as untimely, his petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful
consideration, we affirm.
The procedural history of this case developed as follows. On May 16,
2012, Appellant, in accordance with a negotiated plea agreement, entered a
plea of guilty to one count each of involuntary deviate sexual intercourse,
statutory sexual assault, aggravated indecent assault, unlawful contact with
a minor, corruption of minors, and intimidation of a witness.1 Appellant was
sentenced that same day in accordance with the plea agreement to an
____________________________________________
1
18 Pa.C.S.A. §§ 3123(a)(7), 3122.1(a)(1), 3125(a)(8), 6318(a)(1),
6301(a)(1)(i), and 4952(a)(3), respectively.
*Former Justice specially assigned to the Superior Court.
J-S06030-16
aggregate term of incarceration of 8 to 20 years followed by 5 years of
probation. Appellant did not file a post sentence motion or notice of appeal.
Appellant filed the instant pro se PCRA petition, his first, on May 29,
2015. Therein, Appellant claimed he was entitled to relief from an illegal
sentence in light of the recent Supreme Court case of Alleyne v. United
States, 133 S. Ct. 2151 (2013). On June 4, 2015, the PCRA court
appointed counsel to represent Appellant. On June 10, 2015, counsel filed a
motion to withdraw together with a Turner/Finley2 letter. On July 17,
2015, the PCRA court issued, pursuant to Pennsylvania Rule of Criminal
Procedure 907, a notice of its intent to dismiss Appellant’s pro se PCRA
petition without a hearing due to its untimeliness, and Appellant’s failure to
plead or prove an applicable exception to the PCRA’s timeliness
requirements. By contemporaneous order, the PCRA court granted counsel’s
motion to withdraw. Appellant did not submit any response to counsel’s
Turner/Finley letter or to the PCRA court’s notice of intent to dismiss. The
PCRA court issued an order dismissing Appellant’s pro se PCRA petition on
August 12, 2015. Appellant filed a timely notice of appeal on August 24
2015.3
____________________________________________
2
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
3
The PCRA court did not require Appellant to prepare a concise statement of
errors complained of on appeal under Pennsylvania Rule of Appellate
Procedure 1925(b). The PCRA court filed a Rule 1925(a) memorandum
(Footnote Continued Next Page)
-2-
J-S06030-16
On appeal, Appellant raises the following issue for our review.
Did the trial court err in not correcting an illegal
sentence?
Appellant’s Brief at 1.
The following precepts guide our review of a PCRA court’s dismissal of
a PCRA petition. “Our standard of review of [an] order granting or denying
relief under the PCRA requires us to determine whether the decision 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.” Commonwealth v. Melendez-
Negron, 123 A.3d 1087, 1090 (Pa. Super. 2015) (citation omitted). The
timeliness of Appellant’s petition is our threshold issue “because the PCRA
time limitations implicate our jurisdiction and may not be altered or
disregarded in order to address the merits of a petition.” Commonwealth
v. Cristina, 114 A.3d 419, 421 (Pa. Super. 2015) (citations omitted).
“Under the PCRA, any petition for post-conviction relief… must be filed within
one year of the date the judgment of sentence becomes final, unless one of
the exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies.”4 Id.
_______________________
(Footnote Continued)
noting the reasons for its ruling were fully set forth in its July 17, 2015
notice of intent to dismiss.
4
The statute sets forth those exceptions as follows.
§ 9545. Jurisdiction and proceedings
(Footnote Continued Next Page)
-3-
J-S06030-16
“The period for filing a PCRA petition is not subject to the doctrine of
equitable tolling; instead, the time for filing a PCRA petition can be extended
only if the PCRA permits it to be extended.” Commonwealth v. Miller, 102
_______________________
(Footnote Continued)
…
(b) Time for filing petition.—
(1) Any petition under this subchapter,
including a second or subsequent petition, shall
be filed within one year of the date the
judgment becomes final, unless the petition
alleges and the petitioner proves that:
(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).
-4-
J-S06030-16
A.3d 988, 992-993 (Pa. Super. 2014) (internal quotation marks and citation
omitted).
In this case, Appellant’s judgment of sentence became final on June
15, 2012, when the 30 days to file a timely notice of appeal from his
judgment of sentence expired. See 42 Pa.C.S.A. § 9545(b)(3).
Accordingly, Appellant had until June 15, 2013, to file a timely PCRA petition
unless he could plead and prove the application of one of the listed
exceptions. See id. § 9545(b)(1). Therefore, Appellant’s May 29, 2015 pro
se PCRA petition is facially untimely, and it became incumbent upon him to
plead and prove the applicability of one or more of the enumerated
exceptions in order to invoke the jurisdiction of the PCRA court. See
Cristina, supra.
Instantly, Appellant does not specifically argue the applicability of an
enumerated exception under the PCRA. Rather, he claims his sentence runs
afoul of the United States Supreme Court’s June 17, 2013 decision in
Alleyne v. United States, 133 S. Ct. 2151 (2013), and as such is
jurisdictionally unsound. Appellant’s Brief at 6. Appellant “therefore asserts,
because graduated penalties is [sic] considered, by law to be ‘elements’
illegal sentence imposed by this court is forever challengable [sic] and
cannot become valid through lapse of time.” Id. However, this Court has
rejected such arguments, which attempt to circumvent the timeliness
requirements of the PCRA.
-5-
J-S06030-16
[A] court may entertain a challenge to the legality of
the sentence so long as the court has jurisdiction to
hear the claim. In the PCRA context, jurisdiction is
tied to the filing of a timely PCRA petition. 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.
Pennsylvania law makes clear no court has
jurisdiction to hear an untimely PCRA petition. Thus,
a collateral claim regarding the legality of a sentence
can be lost for failure to raise it in a timely manner
under the PCRA.
Commonwealth v. Infante, 63 A.3d 358, 365 (Pa. Super. 2013) (internal
quotation marks and citations omitted).
Furthermore, to the extent Appellant’s claim could be construed as
invoking a new constitutional right, this Court has held that Alleyne does
not satisfy the Section 9545(b)(1)(iii) exception to the PCRA’s one-year filing
deadline. Specifically, we have recently held that while “Alleyne applies
retroactively on direct appeal, we have declined to construe that decision as
applying retroactively to cases during PCRA review.” Commonwealth v.
Riggle, 119 A.3d 1058, 1064-1065 (Pa. Super. 2015). Our Supreme Court
has clearly held “that the language ‘has been held’ in 42 Pa.C.S.
§ 9545(b)(1)(iii) means that a retroactivity determination must exist at the
time that the petition is filed.” Commonwealth v. Abdul-Salaam, 812
A.2d 497, 502, (Pa. 2002). No such decision holding Alleyne to apply
retroactively for post-conviction collateral relief has been made. See Miller,
supra at 995 (noting it was fatal to Miller’s claimed Section 9545(b)(1)(iii)
exception that neither the United States nor the Pennsylvania Supreme
-6-
J-S06030-16
Courts have held that Alleyne applies retroactively to cases where the
judgment of sentence is final). Additionally, this Court, after applying the
test for retroactive application during collateral review as enunciated in
Teague v. Lane, 489 U.S. 288 (1989) (plurality), to Alleyne, has opined,
“the fundamental fairness of the trial or sentencing is not seriously
undermined, and Alleyne is not entitled to retroactive effect in [a] PCRA
setting.” Riggle, supra at 1067.
In light of the preceding, we conclude Appellant has failed to plead and
prove the applicability of an exception to the timeliness requirements of the
PCRA, therefore, we agree with the PCRA court that his petition is untimely,
and that the PCRA court and this Court are without jurisdiction to address
Appellant’s legality of sentence claim. See Cristina, supra; Infante,
supra. Accordingly, we affirm the PCRA court’s August 12, 2015 order
dismissing Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/2016
-7-