COMMONWEALTH of Pennsylvania, Appellee v. Travis Justin WHITEHAWK, Appellant
No. 330 EDA 2016
Superior Court of Pennsylvania.
August 24, 2016
146 A.3d 266
Submitted August 1, 2016
Judge Lazarus files a Concurring Opinion.
CONCURRING OPINION BY LAZARUS, J.:
I concur because I agree with the result the majority has reached. I write separately, however, to note that my analysis would be different regarding whether the gun had an “altered” manufacturer‘s number in accordance with
The majority indicates that the expert‘s opinion that the number had not been “altered” should be discounted because the value of his testimony was limited to reporting the means of discerning the number and did not include defining the terms used in the statute to describe an “altered” number. The terms include that the firearm‘s number has been “altered, changed, removed or obliterated.” Id. The firearms expert testified that the number had not been altered. Indeed, because the number could still be discerned via magnification, in a strict sense, the number was not altered, changed, or removed.
I note, however, that one definition of “obliterate” is “to make undecipherable or imperceptible by obscuring or wearing away.” Merriam Webster Dictionary, http://www.merriam-webster.com/dictionary/obliterate. Under this definition, “obliterated” in the statute means that the number had been made indecipherable or imperceptible. This definition aptly describes what occurred in the instant matter, since the number had been ground away to such an extent that it was not perceivable by the naked eye. Using this definition of “obliterated” differentiates it from the term “removed,” thereby giving full effect to the words of the statute. See Commonwealth v. McCoy, 599 Pa. 599, 962 A.2d 1160, 1168 (2009) (“When there is an interpretation available that gives effect to all of the statute‘s phrases and does not lead to an absurd result, that interpretation must prevail.“). Furthermore, as the majority implies, this type of effort to obscure a gun‘s manufacturer‘s number is clearly contemplated by section 6110.2(a).
It is with this analysis in mind that I concur with the majority.
Judge Dubow joins this Concurring Opinion.
Kevin R. Steele, Assistant District Attorney, and Todd N. Barnes, Assistant District Attorney, Norristown, for Commonwealth, appellee.
BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.:
Appellant Travis Justin Whitehawk appeals, pro se, the order entered in the Court of Common Pleas of Montgomery County on January 6, 2016, dismissing as untimely his first petition filed pursuant to the Post Conviction Relief Act (“PCRA“).1 We affirm.
On May 17, 2011, Appellant entered a negotiated plea of guilty to a first-degree
On August 11, 2015, Appellant filed the instant PCRA petition pro se.3 Counsel was appointed and on December 4, 2015, filed a motion to withdraw as counsel along with a “no-merit” letter pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988) (en banc). Upon finding that counsel had complied with the requirements of Turner/Finley, the PCRA court granted PCRA counsel‘s motion to withdraw and notified Appellant on December 7, 2015, pursuant to PaR.Crim.P. 907(1) that his PCRA petition would be dismissed unless a response was filed within twenty (20) days. Appellant filed his “Objection to Intent to Dismiss Post Conviction Relief Act Pursuant to Pa.R.Crim.Proc. Rule 907” on December 24, 2015, wherein he challenged the legality of his sentence. Specifically, Appellant averred the decision of the United States Supreme Court in Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) had rendered his sentence illegal and that he was entitled to relief under the “newly discovered facts” exception to the PCRA time-bar set forth in
After its independent review of Appellant‘s claims set forth in his PCRA petition, counsel‘s motion to withdraw and accompanying no-merit letter, Appellant‘s response to the Rule 907 Notice, and the complete record, the PCRA court held there were no genuine issues concerning any material fact that would entitle Appellant to post-conviction relief. Finding that no purpose would be served by further proceedings, the PCRA court granted counsel‘s motion to withdraw and dismissed Appellant‘s petition without a hearing on January 6, 2016.5 In doing so, the PCRA court first determined Appellant had waived his claims by pleading guilty and failing to appeal his judgment of sentence. See Final Order Denying Post-Conviction Petition and Granting Counsel‘s Motion to Withdraw at 2. The PCRA court further found Appellant had failed to allege and prove that an exception to the
On January 21, 2016, Appellant filed a timely appeal, pro se, with this Court. In his appellate brief, Appellant presents the following Statement of the Questions Involved:
I. Did the P.C.R.A. Court err in denying the Post Conviction Relief Act Petition without a hearing by misapprehending the retrospective application in Commonwealth v. Hopkins, 117 A.3d 247 (2015) when it is [sic] paradigm, Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) created a “substantive rule,” which “the Constitution requires State Collateral Review Courts to give retroactive effect to that rule?”
II. Did the P.C.R.A. Court err in denying the Post Conviction Relief Act Petition without a hearing when [Appellant] filed the instant Post Conviction Relief Act Petition timely by filing within sixty (60) days of learning of the Supreme Court of Pennsylvania‘s decision in Commonwealth v. Hopkins, 117 A.3d 247 (2015)?
III. Did the P.C.R.A. Court err in denying the Post Conviction Relief Act Petition without a hearing when [Appellant] contends that through the Court‘s inherent power, the P.C.R.A. Court always retains jurisdiction to correct his patently unconstitutional, and therefore illegal sentence?
Brief for Appellant at 4.
Our standard of review of a PCRA court‘s dismissal of a PCRA petition is limited to examining whether the PCRA court‘s determination is supported by the record evidence and free of legal error. Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa.Super.2003) (en banc). Before addressing the merits of Appellant‘s claims, we must first determine whether we have jurisdiction to entertain the underlying PCRA petition. See Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978, 983 (2008) (explaining that the timeliness of a PCRA petition is a jurisdictional requisite).
The most recent amendments to the PCRA, effective January 19, 1996, provide that a PCRA petition, including a second or subsequent petition, shall be filed within one year of the date the underlying judgment becomes final.
The three statutory exceptions to the timeliness provisions in the PCRA allow for very limited circumstances under which the late filing of a petition will be excused.
(i) the failure to raise a claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or the law of this Commonwealth or the Constitution or law 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 Pennsylvania after the time period provide in this section and has been held by that court to apply retroactively.
Instantly, Appellant was sentenced on May 17, 2011, and his motion for reconsideration of sentence was denied on June 10, 2011. Appellant did not file a timely appeal with this Court. Therefore, Appellant‘s judgment of sentence became final thirty days thereafter on July 11, 2011.6 See
Appellant argues his petition is not time-barred because the United States Supreme Court created a “new rule” of substantive law in Alleyne, supra, that applies retroactively to cases on collateral review. Brief for Appellant at 11, 15. Appellant urges that were Alleyne not applied retroactively herein, he would be facing “a punishment that the law cannot impose on him.” He further reasons that as he has sought relief under the PCRA, the sole means for seeking collateral relief in this Commonwealth, he “must be afforded the constitutional right of retroactive application of Alleyne, due to fact that the ‘new rule’ announced is a ‘substantive rule,’ and therefore applies retroactively to cases on collateral review.” Id. at 15-16. Appellant explains that he is raising this “newly discovered fact” that his sentence became illegal in light of the Pennsylvania Supreme Court‘s decision in Commonwealth v. Hopkins, 632 Pa. 178, 117 A.3d 247 (2015) to invoke the exception to the PCRA time-bar under
As long as this Court has jurisdiction over a matter, a legality of sentencing issue is reviewable and cannot be waived. Commonwealth v. Jones, 932 A.2d 179, 182 (Pa.Super.2007). However, a legality of sentencing issue must be raised in a timely filed PCRA petition. See
Our Supreme Court decided Hopkins on June 15, 2015; thus, in order to invoke the newly-discovered fact exception of
Also, contrary to Appellant‘s claim, the Hopkins decision did not announce a “new rule,” but rather simply assessed the validity of Section 6317 under Alleyne and concluded that particular mandatory minimum sentencing statute was unconstitutional. Furthermore, even if Hopkins had announced a new rule, neither our Supreme Court nor the United States Supreme Court has held that Hopkins applies retroactively to post-conviction petitioners such as Appellant. Consequently, to the extent Appellant attempts to rely on Hopkins, he has not satisfied the timeliness exception of Section 9545(b)(1).
Finally, assuming that Alleyne announced a new constitutional right, 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 had become final, and this Court has recognized that a new rule of constitutional law is applied retroactively to cases on collateral review only if the United States Supreme Court or the Pennsylvania Supreme Court specifically holds it to be retroactively applicable to those cases. Commonwealth v. Phillips, 31 A.3d 317, 320 (Pa.Super.2011), appeal denied, 615 Pa. 784, 42 A.3d 1059 (2012). To the contrary, our Supreme Court recently filed an opinion in Commonwealth v. Washington, 142 A.3d 810, 2016 WL 3909088 (Pa. July 19, 2016) wherein it addressed the retroactive effect of Alleyne and held “that Alleyne [ v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013),] does not apply retroactively to cases pending on collateral review....” Id. at *8.
For all of the foregoing reasons, we find the PCRA court lacked jurisdiction to consider the merits of Appellant‘s PCRA petition and properly dismissed it as untimely filed. Accordingly, we affirm the PCRA court‘s January 6, 2016, Order.
Order affirmed.
* Former Justice specially assigned to the Superior Court.