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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
RAZEEK CARWHEEL :
:
Appellant : No. 3662 EDA 2016
Appeal from the PCRA Order October 19, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012022-2007
BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED FEBRUARY 09, 2018
Appellant, Razeek Carwheel, appeals pro se from the order entered in
the Philadelphia County Court of Common Pleas, which denied his second
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), at 42
Pa.C.S.A. §§ 9541-9546. On August 19, 2009, a jury convicted Appellant in
absentia of possession with the intent to distribute (“PWID”) and criminal
conspiracy to commit PWID. The court sentenced Appellant in absentia on
October 2, 2009, to an aggregate term of 10-20 years’ incarceration.
Appellant sought no direct review. So, the judgment of sentence became
final on November 1, 2009. On September 6, 2012, Appellant filed his first
PCRA petition, which was ultimately unsuccessful.
Appellant filed his second, current pro se PCRA petition on March 27,
2015, and an amended second pro se PCRA petition on July 20, 2015. On
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July 12, 2016, the PCRA court issued Rule 907 notice; Appellant filed a pro
se response on August 12, 2016. On October 19, 2016, the PCRA court
denied Appellant’s PCRA petition. Appellant timely filed a pro se notice of
appeal on November 14, 2016. The PCRA court did not order a Rule 1925(b)
statement, and Appellant filed none.
The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A PCRA
petition, including a second or subsequent petition, shall be filed within one
year of the date the underlying judgment of sentence becomes final. 42
Pa.C.S.A. § 9545(b)(1). A judgment of sentence is deemed 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.A. § 9545(b)(3). The
statutory exceptions to the PCRA time-bar allow for very limited
circumstances which excuse the late filing of a petition; a petitioner
asserting a timeliness exception must file a petition within 60 days of when
the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(1-2). To
assert the newly created constitutional right exception per Section
9545(b)(1)(iii), “a petitioner must prove that there is a new constitutional
right and that the right has been held by that court to apply retroactively.”
Commonwealth v. Chambers, 35 A.3d 34, 41 (Pa.Super. 2011), appeal
denied, 616 Pa. 625, 46 A.3d 715 (2012). Under the Section 9545(b)(1)(iii)
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exception, the 60-day rule runs from the filing date of the cited decision.
Commonwealth v. Secreti, 134 A.3d 77, 80 (Pa.Super. 2016).
Instantly, Appellant’s judgment of sentence became final on November
1, 2009, upon expiration of the 30-day period for filing a direct appeal. See
Pa.R.A.P. 903(a). Appellant filed the current pro se PCRA petition on March
27, 2015, which is patently untimely. Appellant attempts to invoke the “new
constitutional right” exception citing: Alleyne v. United States, 570 U.S.
99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013); Commonwealth v. Hopkins,
632 Pa. 36, 117 A.3d 247, (2015); Commonwealth v. Warren, 84 A.3d
1092 (Pa.Super. 2014); and Commonwealth v. Munday, 78 A.3d 661
(Pa.Super. 2013).1 The cases Appellant cites, however, do not serve as
exceptions to the PCRA time-bar under these circumstances. See
Commonwealth v. Washington, 636 Pa. 301, 142 A.3d 810 (2016)
(holding new constitutional rule announced in Alleyne is not substantive or
watershed procedural rule that warrants retroactive application to collateral
attacks on mandatory minimum sentences, where judgment of sentence
____________________________________________
1 Appellant cites the following cases for the first time in his brief on appeal:
Welch v. United States, ___ U.S. ___, 136 S.Ct. 1257, 194 L.Ed.2d 387
(2016); Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551, 192
L.Ed.2d 569 (2015); and Commonwealth v. Barnes, 637 Pa. 493, 151
A.3d 121 (2016). To the extent Appellant attempts to rely upon these cases
to satisfy the “new constitutional right” exception to the PCRA time-bar,
Appellant’s argument is waived. See Pa.R.A.P. 302(a) (stating: “Issues not
raised in the [trial] court are waived and cannot be raised for the first time
on appeal”).
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became final before Alleyne was decided); Commonwealth v.
Whitehawk, 146 A.3d 266 (Pa.Super. 2016) (holding Hopkins did not
announce new constitutional rule, and even if it had, neither United States
Supreme Court nor Pennsylvania Supreme Court has held Hopkins applies
retroactively on collateral review); 42 Pa.C.S.A. § 9545(b)(1)(iii) (providing
new constitutional right must be recognized by Supreme Court of United
States or Supreme Court of Pennsylvania). Additionally, Appellant failed to
file his current petition within 60 days of Alleyne, decided on June 17, 2013,
Warren, decided on January 29, 2014, and Munday, decided on October
10, 2013. See Secreti, supra; 42 Pa.C.S.A. § 9545(b)(2), supra.
Therefore, Appellant’s petition remains time-barred, the PCRA court lacked
jurisdiction to review it on the merits, and the court properly dismissed it as
untimely. See Zeigler, supra. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/9/18
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