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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
CARINA DEE WARNICK, :
:
Appellant :
: No. 1385 WDA 2015
Appeal from the PCRA Order August 20, 2015
in the Court of Common Pleas of Venango County Criminal Division
at No(s): CP-61-CR-0000688-2011
BEFORE: LAZARUS, STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED: March 17, 2016
Appellant, Carina Dee Warnick, appeals from the order entered in the
Venango County Court of Common Please dismissing her first Post
Conviction Relief Act1 (“PCRA”) petition as untimely. Appellant avers her
sentence is unconstitutional under Alleyne v. United States, 133 S. Ct.
2151 (2013).2 We affirm.
* Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
2
“[I]n Alleyne, the United States Supreme Court found mandatory
minimum sentence enhancements unconstitutional where the facts that
increase a mandatory minimum sentence are not submitted to a jury and
are not required to be found beyond a reasonable doubt.” Commonwealth
v. Melendez-Negron, 123 A.3d 1087, 1091 (Pa. Super. 2015).
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The relevant procedural history underlying the instant appeal is as
follows. On August 9, 2012, Appellant pleaded guilty to possession with the
intent to manufacture or deliver a controlled substance3 (“PWID”) and
possession of a controlled substance.4 On September 14, 2012, the trial
court imposed a mandatory minimum sentence of five to ten years’
imprisonment pursuant to 18 Pa.C.S. § 7508(a)(3)(iii). Appellant did not file
a direct appeal.
Appellant filed her first pro se petition for post conviction collateral
relief on February 18, 2015.5 The PCRA court appointed counsel to
represent Appellant on February 24, 2015. Appointed counsel filed a motion
for a hearing6 on March 18, 2015, arguing, in relevant part, Appellant’s
sentence is illegal “due to a holding by the Superior Court of [Pennsylvania]
that mandatory [sentences] are illegal.” Mot. for Hr’g, 3/18/15, at 1. The
PCRA hearing was conducted on August 3, 2015, and on August 20, 2015,
the PCRA court denied Appellant’s PCRA petition. The PCRA court concluded
that she was not entitled to PCRA relief under Alleyne. See PCRA Ct. Op.,
3
35 P.S. § 780-113(a)(30).
4
35 P.S. § 780-113(a)(16).
5
The petition was filed on February 23, 2015. However, the certified record
contains a post-marked envelope with the February 18, 2015 date. Thus,
we consider the petition filed on that date. See Commonwealth v.
Bradley, 69 A.3d 253, 254 n.3 (Pa. Super. 2013).
6
Counsel only sought argument on Appellant’s petition and did not file an
amended PCRA petition.
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9/28/15, at 5. Appellant timely filed a counseled notice of appeal on
September 2, 2015, and a concise statement of matter complained on
appeal, pursuant to Pa.R.A.P. 1925(b), on September 22, 2015.
On appeal, Appellant raises the following issue for our review:
Whether the PCRA court abused its discretion or
erred as a matter of law in denying [Appellant’s]
PCRA petition seeking to find her sentence
unconstitutional since she was sentenced to a
mandatory minimum sentence and the statutes
concerning her conviction have been found
unconstitutional but not retroactive.
Appellant’s Brief at 5.
Appellant contends that because Alleyne held mandatory sentences
unconstitutional, she is entitled to relief. Id. at 11. “[A]ppellant asserts
that her PCRA issue is a new constitutional right . . . .” Id. at 9. Appellant’s
argument rests on her conclusion “that once something is unconstitutional it
is always unconstitutional.” Id. at 11. However, Appellant concedes, “[t]he
current law is clear that the mandatory sentence cannot be raised from a
PCRA petition.” Id. at 11.
The standard of review for the denial of a PCRA petition is as follows:
In reviewing the denial of PCRA relief, we examine
whether the PCRA court’s determination is supported
by the record and free of legal error. The scope of
review is limited to the findings of the PCRA court
and the evidence of record, viewed in the light most
favorable to the prevailing party at the trial level . . .
. However, this Court reviews the PCRA court’s legal
conclusions de novo.
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Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (internal
quotation marks and citations omitted). “[W]e must first consider the
timeliness of Appellant’s PCRA petition because it implicates the jurisdiction
of this Court and the PCRA court.” Id. (citation omitted). “If the [PCRA]
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.” Commonwealth v. Jackson, 30 A.3d. 516, 519 (Pa. Super.
2011) (citation omitted).
Section 9545 provides the following timeliness requirements:
(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
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section and has been held by that court to apply
retroactively.
(2) Any petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the
date the claim could have been presented.
(3) For purposes of this subchapter, 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.
42 Pa.C.S. § 9545(b)(1)-(3).
In this case, Appellant’s judgment of sentence became final on October
15, 2012,7 after the period for taking an appeal expired. See Pa.R.A.P.
903(a). Therefore, she had until October 15, 2013, to file a timely PCRA
petition. See 42 Pa.C.S. § 9545(b)(1). The instant petition was filed on
February 23, 2015, and is facially untimely.
In Miller, the appellant filed a facially untimely PCRA petition claiming
that under Alleyne, he met the “time-bar exception” outlined in 42 Pa.C.S.
§ 9545(b)(1)(iii). Miller, 102 A.3d at 993-94. The Miller Court held that
Alleyne did not entitle the appellant to relief because “neither our Supreme
Court, nor the United States Supreme Court has held that Alleyne is to be
applied retroactively to cases in which the judgment of sentence has become
7
We note the 30th day from Appellant’s sentence was Sunday, October 14,
2012. When considering the timeliness of a filing, “[w]henever the last day
of any such period should fall on a Saturday or Sunday . . . , such day shall
be omitted from the computation.” 1 Pa.C.S. § 1908. Therefore, Appellant
had until October 15, 2012, to file a timely appeal.
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final.” Id. at 995. Hence, the appellant in Miller did not “satisfy the new
constitutional right exception to the time-bar.” Id.
Instantly, Appellant filed an untimely PCRA petition and claims she is
entitled to constitutional protection set out in Alleyne. Pursuant to Miller,
we agree with the PCRA court and conclude that the instant petition was
untimely, and Alleyne does not entitle Appellant to relief. Id. Based on the
foregoing, we find no error in the court’s denial of Appellant’s PCRA petition.
See id.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/17/2016
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