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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
SHAWN WHITENIGHT,
Appellant No. 378 WDA 2016
Appeal from the PCRA Order February 11, 2016
in the Court of Common Pleas of Jefferson County
Criminal Division at No.: CP-33-CR-0000001-2014
BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 1, 2016
Appellant, Shawn Whitenight, appeals pro se from the order dismissing
his second petition pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541–9546, as untimely filed. Appellant has also filed an
application to strike the entry of appearance of the prosecutor. We deny the
application as moot, and affirm the order of dismissal.
On May 16, 2014, Appellant entered a counseled guilty plea to one
count of attempted kidnapping1 and received a negotiated sentence of not
less than forty-eight nor more than ninety-six months’ incarceration in a
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*
Retired Senior Judge assigned to the Superior Court.
1
Pertinent to an issue raised on appeal, Appellant admitted the attempted
kidnap, but denied using a gun. (See N.T. Plea and Sentencing, 5/16/14, at
9).
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state correctional institution, followed by a term of twelve years’ probation.2
(See N.T. Plea and Sentencing, 5/16/14, at 12; see also Sentence,
5/19/14). He did not file post-sentence motions or a direct appeal.
Appellant’s first, counseled PCRA petition, filed on May 11, 2015, was
dismissed on August 20, 2015, after notice pursuant to Pa.R.Crim.P. 907.
He filed the instant second petition pro se on January 4, 2016. After Rule
907 notice and Appellant’s written objection, the PCRA court dismissed the
petition on February 11, 2016. Appellant timely appealed, on March 7,
2016.3
Appellant presents two questions for our review:
I. Whether the trial court erred when it dismissed
Appellant’s second PCRA petition as being untimely and not
meeting any of the statutory exceptions?
II. Whether the trial court erred in sentencing Appellant to
an illegal sentence?
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2
As part of the plea, the Commonwealth nolle prossed eleven remaining
charges, including the more serious charge of actual kidnapping. (See id. at
12). Also as part of the negotiated plea, the Commonwealth waived
Appellant’s ineligibility for RRRI, making him RRRI eligible at forty months.
(See id. at 9, 13).
3
Appellant filed a timely concise statement of errors on March 29, 2016.
See Pa.R.A.P. 1925(b). The PCRA court filed an opinion on March 31, 2016,
referencing its opinion and order filed on February 11, 2016 in support of the
notice of intent to dismiss Appellant’s second PCRA petition. See Pa.R.A.P.
1925(a).
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(Appellant’s Brief, at 7).4
In conducting review of a PCRA matter, we consider the
record in the light most favorable to the prevailing party at the
PCRA level. Our review is limited to the evidence of record and
the factual findings of the PCRA court. This Court will afford
great deference to the factual findings of the PCRA court and will
not disturb those findings unless they have no support in the
record. Thus, when a PCRA court’s ruling is free of legal error
and is supported by record evidence, we will not disturb its
decision. Of course, if the issue pertains to a question of law,
our standard of review is de novo and our scope of review is
plenary.
Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super. 2015), appeal
denied, 125 A.3d 1201 (Pa. 2015) (citation and internal quotation marks
omitted).
Here, liberally construed, Appellant argues in effect that his sentence
is illegal because, he claims, he was sentenced pursuant to a deadly
weapons enhancement (DWE). (See Appellant’s Brief, at 14, 17). He
maintains that a DWE sentence is constitutionally infirm under
Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc),
appeal denied, 121 A.3d 496 (Pa. 2015). (See id. at 11).
Newman, a direct appeal decided on August 20, 2014, held that a
mandatory minimum sentencing statute, 42 Pa.C.S.A. § 9712.1, is
unconstitutional under the United States Supreme Court’s holding in Alleyne
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4
The Commonwealth did not file a brief in this appeal.
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v. United States, 133 S. Ct. 2151 (2013).5 See Newman, supra at 103.
Alleyne held that any fact that, by law, increases the mandatory minimum
penalty for a crime is an “element” that must be submitted to the jury and
found beyond a reasonable doubt. Alleyne, supra at 2155.6
However, before we may review the merits of Appellant’s claims, we
must consider whether the instant PCRA petition is timely. The timeliness of
a PCRA petition is a threshold question that implicates the jurisdiction of a
court to consider the merits of the relief requested. See Commonwealth
v. Davis, 86 A.3d 883, 887 (Pa. Super. 2014).
To be timely, a PCRA petition must be filed within one year of the date
that the petitioner’s judgment of sentence became final, unless the petition
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5
We note that Alleyne, decided on June 17, 2013, was already controlling
authority when Appellant entered his plea and received his negotiated
sentence on May 16, 2014.
6
Even if Appellant’s claim was cognizable, his reliance on Alleyne and
Newman would be misplaced. On independent review it is abundantly clear
that the sentencing court did not sentence under the DWE. (See N.T. Plea
and Sentencing, at 11). The Guideline Sentence Form confirms that the
court did not factor in a DWE. (See Guideline Sentence Form, 8/13/14).
Moreover, this Court has already decided that a trial court may find that the
deadly weapon enhancement applies without offending Alleyne. See
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1270 n.10 (Pa. Super.
2014) (en banc); see also Commonwealth v. Valentine, 101 A.3d 801,
813 (Pa. Super. 2014) (Gantman, P.J., concurring). In any event, Alleyne
is not retroactive. See Commonwealth v. Washington, No. 37 EAP 2015,
2016 WL 3909088, at *8 (Pa. filed July 19, 2016) (holding that Alleyne
does not apply retroactively to cases pending on collateral review). (See
also n.8, infra).
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alleges and the petitioner pleads and proves one or more of the following
statutory exceptions:
(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).
The PCRA petitioner bears the burden to plead and prove that one of
the timeliness exceptions applies. In addition, a petition invoking any of the
timeliness exceptions must be filed within sixty days of the date the claim
first could have been presented. See 42 Pa.C.S.A. § 9545(b)(2). A
petitioner fails to satisfy the sixty–day requirement of Section 9545(b) if he
or she fails to explain why, with the exercise of due diligence, the claim
could not have been filed earlier. See Commonwealth v. Marshall, 947
A.2d 714, 719–20 (Pa. 2008).
“[A]n untimely petition may be received when the petition alleges, and
the petitioner proves, that any of the three limited exceptions to the time for
filing the petition, set forth at [42 Pa.C.S.A. § 9545] are met.”
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Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) (footnote
omitted).
Here, as already noted, Appellant was sentenced on May 16, 2014. He
did not file a direct appeal. Therefore, his sentence became final on June
16, 2014, after the thirty day period to file an appeal expired.7 See 42
Pa.C.S.A. § 9545(b)(3) (providing “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[ ]”). Accordingly, Appellant had
until June 16, 2015 to file a timely PCRA petition.
Consequently, the instant PCRA petition, filed on January 4, 2016, is
untimely on its face unless Appellant pleads and proves one of the statutory
exceptions to the time-bar. Liberally construed, Appellant argues that
because his sentence is illegal his petition was timely and he is entitled to a
remand for resentencing. (See Appellant’s Brief, at 18). We disagree.
“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. Thus, Appellant’s contention is easily dismissed.”
Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (citation omitted).
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7
June 15, 2014 fell on a Sunday.
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Aside from the bald claim of illegality, Appellant fails to plead or prove
any of the three recognized statutory exceptions to the PCRA time-bar.
Furthermore, Appellant failed to file his petition within sixty days of the filing
of the decisions he now cites as authority. See 42 Pa.C.S.A. § 9545(b)(2).
Appellant claims limited access to the prison law library. (See
Appellant’s Brief, at 12-13). This does not provide a basis for relief from the
statutory time-bar. See Commonwealth v. Baldwin, 789 A.2d 728, 731
(Pa. Super. 2001), appeal denied, 863 A.2d 1141 (Pa. 2004) (holding that
“Neither the court system nor the correctional system is obliged to educate
or update prisoners concerning changes in case law.”). Appellant’s petition
was untimely filed with no statutory exception to the time-bar pleaded and
proven.8
Finally, as previously noted, Appellant has filed an application to strike
the entry of appearance of the prosecutor, claiming a conflict of interest.
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8
Moreover, we note for clarity and completeness that the factual premise of
Appellant’s claims, that he was sentenced under a DWE, is belied by the
record. As already noted, Appellant admitted the negotiated count of
attempted kidnap, but denied using a gun. (See N.T. Plea and Sentence
Hearing, 5/16/14, 9). As expressly noted by the trial court, Appellant
received the sentence negotiated as part of a plea agreement. (See id. at
11). Even if the Commonwealth may have considered the DWE guidelines in
formulating the proposed sentence, which Appellant accepted, any such
preliminary consideration, without more, does not convert a negotiated,
favorable sentence into an illegal one. The trial court also noted for the
record that the agreed on sentence fell within, or just above, the standard
range. No enhancement was considered or imposed by the court. (See
id.). The sentencing order contains no reference to a DWE. (See Sentence,
5/19/14; see also n.6 supra).
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(See Application to Strike July 14, 2016 Entry of Appearance by
Commonwealth Attorney Carlini, 7/19/16, at 1-2). With no supporting
evidence, and claiming only unspecified personal knowledge, he alleges
various purported wrongdoings by the prosecutor’s husband at a previous
place of employment. He requests an investigation.
Lacking any basis in law or fact, the application is frivolous.
Furthermore, except for the implicit inference of spousal influence, Appellant
fails to assert, let alone develop, any connection to the instant appeal.
Leaving aside the technical and substantive defects of the application, the
issue is moot. The prosecutor did not file a brief on behalf of the
Commonwealth. “An issue before a court is moot if in ruling upon the issue
the court cannot enter an order that has any legal force or effect.”
Deutsche Bank Nat. Co. v. Butler, 868 A.2d 574, 577 (Pa. Super. 2005)
(quoting Rivera v. Pa. Dep’t of Corr., 837 A.2d 525, 527 (Pa. Super.
2003)).
Order affirmed. Application denied as moot.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/1/2016
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