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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
TRACEY WHITAKER
Appellant No. 369 EDA 2016
Appeal from the PCRA Order January 12, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0001147-1994
BEFORE: OLSON, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED NOVEMBER 10, 2016
Tracey Whitaker appeals pro se from the order entered on January 12,
2016, denying him relief, without a hearing, on this, his eighth petition filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq.
The PCRA court determined the petition was untimely. Whitaker raises two
issues in this timely appeal. First, he claims his petition was timely pursuant
to the dictates of Alleyne v. United States, ___U.S.___, 133 S.Ct. 2151,
186 L.Ed.2 314 (2013) and Montgomery v. Louisiana, ___U.S.___, 136
S.Ct. 718, 193 L.Ed.2 599 (2016). The second argument is
incomprehensible.1 The PCRA court determined the petition was untimely
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1
The argument appears to encompass a claim that his sentence is
unconstitutional because the trial court failed to charge the jury pursuant to
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and Whitaker did not plead and prove entitlement to any of the statutory
exceptions to the PCRA’s one-year jurisdictional time limit. After a thorough
review of the submissions by the parties, relevant law, and the certified
record, we affirm.
Whitaker was found guilty by a jury of first-degree murder, and
related charges, regarding the beating death of nine-month-old Robert
Pringle, his girlfriend’s son. Whitaker, who was not subject to the death
penalty, was subsequently sentenced to a mandatory sentence of life
imprisonment. He filed a direct appeal and this Court affirmed the judgment
of sentence of on August 15, 1995. Commonwealth v. Whitaker, 668
A.2d 1199 (Pa. Super. 1995) (unpublished memorandum). The
Pennsylvania Supreme Court denied allowance of appeal on January 26,
1996. Commonwealth v. Whitaker, 672 A.2d 307 (Pa. 1996). Whitaker’s
sentence became final 90 days later, April 25, 1996, when time expired to
seek review by the United States Supreme Court. See U.S.Sup.Ct.R. 13. As
noted above, the instant petition is Whitaker’s eighth PCRA petition. The
prior seven petitions were all denied as being untimely, except for petition
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(Footnote Continued)
18 Pa.C.S. § 9711, regarding mitigating and aggravating circumstances to
determine whether he would receive the death penalty. Whitaker was not
subject to the death penalty.
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number five which was filed while the appeal from petition number four was
still pending.2
Our standard of review for the denial of PCRA relief is well settled.
In PCRA proceedings, an appellate court's scope of review is
limited by the PCRA's parameters; since most PCRA appeals
involve mixed questions of fact and law, the standard of review
is whether the PCRA court's findings are supported by the record
and free of legal error.
Commonwealth v. Pitts, 981 A.2d 875, 878 (Pa. 2009) (citation omitted).
Before we may address the substantive claims of any PCRA petition,
we must determine if PCRA court correctly found the petition to be untimely.
The PCRA requires that a petition seeking relief thereunder must
be filed within one year of the date the petitioner's judgment of
sentence becomes final. 42 Pa.C.S.A § 9545(b)(1);
Commonwealth v. Jones, 617 Pa. 587, 54 A.3d 14, 16 (2012).
“[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.A. § 9545.
This timeliness requirement is jurisdictional in nature, and a
court may not address the merits of any claim raised unless the
petition was timely filed or the petitioner proves that one of the
three exceptions to the timeliness requirement applies. Jones,
54 A.3d at 16. These exceptions are:
(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;
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2
Whitaker filed at least five petitions for habeas corpus with the federal
courts, all of which afforded Whitaker no relief.
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(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)(i)-(iii).
Commonwealth v. Cox, ___ A.3d ___, 2016 WL 5416327, at *4-5 (Pa.
2016).
Section 9545 places an additional restriction on entitlement to any of
the three timeliness exceptions, “Any petition invoking an exception
provided in paragraph (1) shall be filed within 60 days of the date the claim
could have been filed.” 42 Pa.C.S. § 9545(b)(2).
Whitaker now claims he is entitled to the retroactive application of
Alleyne v. United States, supra, pursuant to section 9545(b)(1)(ii) and
(iii). Whitaker’s claims fail for the following reasons.
First, the Alleyne decision was filed on June 17, 2013 and Whitaker
filed the instant PCRA petition seeking application of Alleyne in October 16,
2014. The 16-month gap between Alleyne and this petition is well past the
60 days allowed by section 9545(b)(2). Therefore, the petition is untimely.
However, Whitaker also asserts that while the resolution of this petition has
been pending, the United States Supreme Court issued the decision in
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Montgomery v. Louisiana, supra, that requires the retroactive application
of Alleyne. Whitaker’s claim still fails for a number of reasons.
Second, despite his bald assertions to the contrary, the Alleyne
decision is not applicable to the mandatory sentence of life imprisonment
imposed on an adult convicted of first-degree murder. The statutory
requirements for sentencing on a conviction for first-degree murder are as
follows:
(1) Except as provided under section 1102.1 (relating to
sentence of persons under the age of 18 for murder, murder of
an unborn child and murder of a law enforcement officer), a
person who has been convicted of a murder of the first degree or
of murder of a law enforcement officer of the first degree shall
be sentenced to death or to a term of life imprisonment in
accordance with 42 Pa.C.S. § 9711 (relating to sentencing
procedure for murder of the first degree).
18 Pa.C.S. § 1102(a)(1).3
Alleyne held that “any fact that, by law, increases the penalty for a
crime is an ‘element’ that must be submitted to the jury and found beyond a
reasonable doubt.” Alleyne 133 S.Ct. at 2155. Except in capital cases, the
verdict itself suffices to trigger the application of section 1102 and no finding
other than the verdict itself, which is the product of a finding beyond a
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3
At the time Whitaker was sentenced, section 1102 did not contain the
provision regarding persons under the age of 18. This provision does not
apply to Whitaker.
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reasonable doubt, is necessary to impose the sentence such as Whitaker
received. Accordingly, the foundation of Whitaker’s argument, his
entitlement to the application of Alleyne, is patently false.
In any event, Alleyne is applicable only to those criminal cases that
were still pending on direct review. See Commonwealth v. Newman, 99
A.3d 86 (Pa. Super. 2014) (en banc). Whitaker’s judgment of sentence
became final on April 25, 1996, when time expired for seeking relief from
the United States Supreme Court. As such, his case was not pending when
the Alleyne decision was filed in 2013.
Further, Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718,
728 (2016) requires the retroactive application of new substantive or
watershed procedural rules, not the retroactive application of all new
constitutional pronouncements as posited by Whitaker. See Appellant’s
Brief at 8. In Commonwealth v. Washington, 142 A.2d 810 (Pa. 2016),
the Pennsylvania Supreme Court determined the Alleyne decision was
neither a new substantive nor watershed procedural rule. Accordingly,
Montgomery does not require retroactive application of Alleyne on
collateral review.
As initially noted, Whitaker’s second claim is incomprehensible. We
quote Whitaker’s “Questions Involved.”
II. Did PCRA court erred in not addressing the constitutionality of
the unlawful statute that authorized the judge to imposed
sentence not declared by a jury, in violation of his 14th and 6th
Amendment, in conjunction to Article I, sections 9, 7, and 10 of
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both constitutions, where the sentencing court never instruct the
jury in accordance to 18 Pa.C.S. Section 1311, 42 Pa.C.S.
Section 9711, and 18 Pa.C.S. Section 1102, where trial court
unlawfully imposed a automatic life sentence under 42 Pa.C.S.
Section 9715, in face of illicit mandates under 18 Pa.C.S. Section
1102(a)?
Appellant’s Brief at 4.
This argument appears to claim the trial court failed to charge the jury
regarding aggravating and mitigating circumstances as required when the
jury is to determine whether a defendant shall be sentenced to death. First,
the argument, as presented in Whitaker’s brief is no more understandable
than the question quoted above. Second, Whitaker was not subject to the
death penalty. Because the argument is incomprehensible, it represents an
undeveloped argument and is therefore waived. Commonwealth v.
Charleston, 94 A.3d 1012, 1021 (Pa. Super. 2014) (undeveloped
arguments are waived).
In light of the foregoing, we find no error of law or abuse of discretion
by the PCRA court in denying Whitaker’s petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/10/2016
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