J-A14028-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANIEL R. WITUCKI :
:
Appellant : No. 1555 MDA 2021
Appeal from the PCRA Order Entered November 3, 2021
In the Court of Common Pleas of Tioga County
Criminal Division at No: CP-59-CR-0000033-1998
BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED: SEPTEMBER 14, 2022
Appellant, Daniel R. Witucki, appeals pro se the order dismissing his
petition denying as untimely his petition for collateral relief filed pursuant to
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. Upon
review, we affirm.
In June of 1998, a jury convicted [Appellant] of first-degree
murder for fatally shooting the victim three times with a rifle. He
was sentenced the same day to a mandatory term of life
imprisonment. This Court affirmed his judgment of sentence, and
our Supreme Court subsequently denied his petition for allowance
of appeal.
In November of 2000, [Appellant] filed his first PCRA petition, pro
se. Counsel was appointed who filed an amended petition. After
a hearing, the PCRA court denied the petition. We affirmed the
denial and our Supreme Court denied allowance of appeal.
[Appellant] subsequently filed serial unsuccessful petitions for
collateral relief in 2012, 2014, and 2016.
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* Former Justice specially assigned to the Superior Court.
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On February 15, 2018, [Appellant] filed a petition for writ of
habeas corpus. In the petition he alleged he is illegally confined
because the sentencing statute for first-degree murder, 18
Pa.C.S. § 1102(a), is void for vagueness and unconstitutional
because it only applies to capital cases. He also specifically
averred that his claim was not cognizable under the PCRA.
The PCRA court, concluding that [Appellant]’s claim asserted the
illegality of his sentence, treated his habeas petition as a PCRA
petition subject to the PCRA’s timeliness provisions. On that
basis, the PCRA court determined that [Appellant]’s petition was
untimely, and that he had not pled an exception to the time bar.
As such, the court issued notice, pursuant to Pa.R.Crim.P. 907, of
its intent to dismiss his petition. After receiving a response from
[Appellant], the court dismissed the petition[, his fourth] on June
1, 2018. We affirmed the dismissal.
On March 7, 2019, [Appellant] filed a petition for writ of habeas
corpus. This time, he again, argued that he is illegally confined
based on Section 1102(a) being void for vagueness, but this time
contending that the statute does not give fair notice that life
imprisonment means life imprisonment means life imprisonment
without parole.
The PCRA court dismissed the petition, which it labeled as
“essentially a PCRA petition”, finding [Witucki] is not entitled to
relief because there are no genuine issues of material fact. The
court further found the petition to be entirely frivolous. [Appellant
timely appealed. We affirmed].
Commonwealth v. Witucki, 1498 MDA 2019, unpublished memorandum
(Pa. Super. filed 3/9/2020).1
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1 On appeal, we found that the issue raised on appeal (i.e., he is illegally
confined because the Section 1102(a) is void for vagueness) did not match
the issues raised in the 2019 PCRA petition (i.e., Section 1102(a) does not
give adequate notice that life imprisonment means life with parole) and
concluded that both issues were waived. Id. at *6.
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On July 16, 2021, Appellant filed his latest petition.2 After filing a notice
of intent to dismiss, on November 3, 2021, the PCRA court dismissed
Appellant’s PCRA petition as untimely. This appeal followed.
In his appeal Appellant argues that the PCRA court erred in denying his
“petition to file a post sentence motion nunc pro tunc.”3 In support of his
claim, Appellant argues that he was never advised of his post sentence rights
by the sentencing court, in particular, he was never told about the timing for
filing a post-sentence motion. Before the PCRA court Appellant clarified that
in his post-sentence motion Appellant intended to argue that the sentencing
statute under which Appellant was sentenced (Section 1102 of the Crimes
Code) was unconstitutionally vague.4
As noted, the lower court treated Appellant’s petition as a PCRA petition.
Appellant does not challenge the lower court’s determination before us. As
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2 Appellant titled the petition as “petition to file post sentence motion nunc
pro tunc,” which the PCRA court treated as a PCRA petition. See PCRA Court
Notice of Intent to Dismiss, 10/1/21, at 1; PCRA Court Supplemental Opinion,
1/7/22, at 1.
3The issue for our review reads as follows: “Whether Appellant is entitled to
have his Post Sentence Rights Reinstated Nunc Pro Tunc as there was a
breakdown in the Court Operation[.] Appellant’s Brief at 3.
4 As noted above, Appellant raised, unsuccessfully, this very same issue in
connection with his 2018 and 2019 PCRA petitions.
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such, we conclude the lower court properly determined that Appellant’s
petition was indeed a PCRA petition, and we will review it as such.5
“[A]n appellate court reviews the PCRA court’s findings of fact to
determine whether they are supported by the record, and reviews its
conclusions of law to determine whether they are free from legal error.”
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).
All PCRA petitions, “including a second or subsequent petition, shall be filed
within one year of the date the judgment becomes final” unless an exception
to timeliness applies. 42 Pa.C.S.A. § 9545(b)(1). “The PCRA’s time
restrictions are jurisdictional in nature. Thus, if a PCRA petition is untimely,
neither this Court nor the [PCRA] court has jurisdiction over the petition.
Without jurisdiction, we simply do not have the legal authority to address the
substantive claims.” Commonwealth v. Chester, 895 A.2d 520, 522 (Pa.
2006) (internal citations and quotation marks omitted) (overruled on other
grounds by Commonwealth v. Small, 238 A.3d 1267 (Pa. 2020)). As
timeliness is separate and distinct from the merits of Appellant’s underlying
claims, we first determine whether this PCRA petition is timely filed.
Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008). The timeliness
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5 At any rate, we agree with the PCRA Court’s assessment. See PCRA Court
Notice of Intent to Dismiss, 10/1/21, at 1-2. Indeed, as noted by the PCRA
Court, in Commonwealth v. Moore, 247 A.3d. 990 (Pa. 2021), our Supreme
Court stated that a void for vagueness challenge to Section 1102(a) is
cognizable under the PCRA and it is subject to the PCRA requirements. See
id. at 998.
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requirements of the PCRA petition must be met, even if the underlying claim
is a challenge to the legality of the sentence. See Commonwealth v.
Holmes, 933 A.2d 57, 60 (Pa. 2007) (“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”) (citing Commonwealth v.
Fahy, 737 A.2d 214, 223 (Pa. 1999)).
It is undisputed the instant petition, which was filed in 2021, is facially
untimely.6 The only question for us to address is whether Appellant pled and
proved that he met one of the exceptions set forth under 42 Pa.C.S.A.
§ 9545(b)(1)(i-iii). Our review of the record shows that Appellant failed to do
so. Indeed, the PCRA court noted that Appellant failed to address in his
petition the timeliness of the petition. See PCRA Court Notice of Intent to
Dismiss, 10/01/21, at 6.7 Accordingly, the lower court found that the petition
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6 Appellant’s sentence became final on February 22, 2000, upon the expiration
of the time to seek review in our Supreme Court. See 42 Pa.C.S.A.
§ 9545(b)(3); Pa.R.A.P. 1113(a). Appellant had one year from February 22,
2000, to file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). The
instant petition, which was filed on July 16, 2021, is facially untimely under
the PCRA.
7 The PCRA court also noted that
assuming in arguendo [Appellant’s] “court breakdown” argument
– that the trial court failed to advise him of his post-sentence and
appellate rights pursuant to Pa.R.Crim.P. 704(C)(3)(a)-
constitutes an “interference by government officials” exception
pursuant to 42 Pa.C.S.A. § 9545(b)(1)(i), [Appellant] has not
proven [the applicability] of this exception.
(Footnote Continued Next Page)
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was untimely. Id. at 8. Similarly, before us, Appellant addresses the merits
of his sentencing claim but fails to address the timeliness of his petition.
Because the underlying petition is facially untimely, and Appellant failed
to plead and prove the applicability of any exception to the one-year bar,8 we
have no jurisdiction to entertain the merits of this appeal. See, e.g.,
Commonwealth v. Callahan, 101 A.3d 118, 123-24 (Pa. Super. 2014) (A
court lacks jurisdiction over the merits of an untimely PCRA petition when
appellant has failed to plead and prove the applicability of an exception to the
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PCRA Court Notice of Intent to Dismiss, 10/1/21, at 6.
8 The PCRA court also noted that the record belied Appellant’s allegation of
breakdown in the court process. To this end, the PCRA court noted that
Appellant executed an “Acknowledgment” (namely, the “Defendant’s
Acknowledgment of Post Sentence Procedures for Use Where Defendant is
Convicted at Trial”), which was filed on July 1, 1998.
The Acknowledgment specifically informed [Appellant] of his post-
sentence and appellate rights. [Appellant] signed the
Acknowledgment indicating that he received a copy of the
document, read it, and discussed it thoroughly with his attorney.
Notwithstanding the fact that [Appellant] was sentenced on June
24, 1998, and the executed Acknowledgment was filed 7 days
later on July 1, 1998. [Appellant] still had until July 6, 1998, and
thus, three (3) days to submit a timely post-sentence motion; he
elected not to do so. Additionally, [Appellant] had twenty-three
(23) days to submit a Notice of Appeal, which he filed timely on
July 20, 1998. He did not raise the instant void-for-vagueness
claim in his direct appeal.
Notice of Intent to Dismiss, 10/1/21, at 6-7 (footnotes omitted; emphasis in
original).
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timeliness requirement). Accordingly, we affirm the order of the PCRA court
dismissing Appellant’s petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/14/2022
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