Com. v. Witucki, D. ( 2016 )

J-S82043-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DANIEL R. WITUCKI,
Appellant No. 838 MDA 2016
Appeal from the Order Entered April 25, 2016
in the Court of Common Pleas of Tioga County
Criminal Division at Nos.: CP-59-CR-0000033-1998
CP-59-CR-0000568-1998
BEFORE: OTT, J., DUBOW, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED NOVEMBER 14, 2016
Appellant, Daniel R. Witucki, appeals pro se from the denial of his third
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-9546, as untimely. We affirm.
On June 24, 1998,1 a jury convicted Appellant of first degree murder
for fatally shooting the victim with a rifle. The trial court sentenced
Appellant to a term of life imprisonment the same day. This Court affirmed
Appellant’s judgment of sentence on July 15, 1999. (See Commonwealth
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
The trial court docket reflects that the verdict was entered on June 26,
1998. However, the jury announced the verdict in open court on June 24,
1998. (See N.T. Trial, 6/24/98, at 731-32).
J-S82043-16
v. Witucki, 742 A.2d 1154 (Pa. Super. 1999)). The Pennsylvania Supreme
Court denied Appellant’s petition for allowance of appeal on November 24,
1999. (See Commonwealth v. Witucki, 747 A.2d 368 (Pa. 1999)).
On November 29, 2000, Appellant filed his first PCRA petition pro se.
Appointed counsel filed an amended petition on June 25, 2001, which the
court denied on October 5, 2001. This Court affirmed the court’s order on
December 24, 2002, and our Supreme Court denied Appellant’s petition for
allowance of appeal on August 27, 2003. (See Commonwealth v. Witucki,
817 A.2d 1187 (Pa. Super. 2002), appeal denied, 829 A.2d 1157 (Pa.
2003)).
On May 15, 2012, Appellant filed his second PCRA petition. On
January 18, 2013, the court appointed PCRA counsel and scheduled a
hearing, after which it denied the petition. On December 24, 2013, a panel
of this Court affirmed the PCRA court’s order. (See Commonwealth v.
Witucki, 93 A.3d 519 (Pa. Super. 2013)). Appellant did not seek review
with our Supreme Court.
Appellant filed a petition for writ of habeas corpus, which the PCRA
court denied on September 30, 2014. A panel of this Court affirmed the
PCRA court’s denial on November 10, 2015. (See Commonwealth v.
Witucki, 134 A.3d 486 (Pa. Super. 2015)).
-2-
J-S82043-16
On February 25, 2016, Appellant filed the instant petition for writ of
habeas corpus, which the PCRA court properly treated as a PCRA petition. 2
(See PCRA Court Notice of Intent to Dismiss, 3/31/16, at unnumbered page
1). On March 31, 2016, the court sent Appellant notice of its intent to
dismiss the petition as untimely, with none of the timeliness exceptions
pleaded or proven. See Pa.R.Crim.P. 907(1). Appellant responded on April
11, 2016, and the court dismissed the petition on April 25, 2016. Appellant
timely appealed.3
Appellant raises two questions for this Court’s review:
A. Whether the [PCRA] court abused its discretion in
dismissing Appellant’s petition for writ of habeas corpus ad
subjiciendum where the verdict announced by the court of guilty
on the first degree murder offense was in error in that the court
did not have jurisdiction of the matter, where the criminal
information filed in this action were [sic] fatally defective since if
[sic] failed to recite all of the essential elements of the offense
and failed to inform Appellant of the precise charge he was
required to defend against at trial?
B. Whether Appellant is illegally confined based on the verdict
and sentence being vitiated and non-existent as a result of the
fatally defective criminal information and eliminates all questions
____________________________________________
2
“Unless the PCRA could not provide for a potential remedy, the PCRA
statute subsumes the writ of habeas corpus.” Taylor, infra, at 465-66
(citations omitted). Here, Appellant challenged the legality of his sentence
and the jurisdiction of the trial court. (See Petition for Writ of Habeas
Corpus, 2/25/16, at 4-5). These claims are cognizable under the PCRA.
See 42 Pa.C.S.A. §§ 9542, 9543(a)(2)(viii).
3
Pursuant to the PCRA court’s order, Appellant filed a timely statement of
errors complained of on appeal on July 1, 2016. See Pa.R.A.P. 1925(b).
The court filed an opinion on July 22, 2016. See Pa.R.A.P. 1925(a).
-3-
J-S82043-16
of waiver, timeliness[,] and due diligence as bars to the relief
sought?
(Appellant’s Brief, at 3) (unnecessary capitalization and emphasis omitted).
Before we reach the merits of Appellant’s questions, we must
determine whether the PCRA court properly determined that his petition was
untimely, and that therefore it lacked jurisdiction to decide its merits.
We review an order dismissing a petition under the PCRA
in the light most favorable to the prevailing party at the PCRA
level. This review is limited to the findings of the PCRA court
and the evidence of record. We will not disturb a PCRA court’s
ruling if it is supported by evidence of record and is free of legal
error. This Court may affirm a PCRA court’s decision on any
grounds if the record supports it. We grant great deference to
the factual findings of the PCRA court and will not disturb those
findings unless they have no support in the record. However, we
afford no such deference to its legal conclusions. Further, where
the petitioner raises questions of law, our standard of review is
de novo and our scope of review is plenary.
Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2013), appeal
denied, 64 A.3d 631 (Pa. 2013) (citations omitted).
Here, the PCRA court found that Appellant’s instant PCRA petition was
untimely and that he failed to plead and prove any exception to the PCRA
time-bar. (See PCRA Ct. Notice of Intent to Dismiss, at unnumbered page
2). We agree.
It is well-settled that:
A PCRA petition, including a second or subsequent one, must be
filed within one year of the date the petitioner’s judgment of
sentence became final, unless he pleads and proves one of the
three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
judgment becomes final at the conclusion of direct review by this
Court or the United States Supreme Court, or at the expiration
-4-
J-S82043-16
of the time for seeking such review. 42 Pa.C.S.[A.] §
9545(b)(3). The PCRA’s timeliness requirements are
jurisdictional; therefore, a court may not address the merits of
the issues raised if the petition was not timely filed. The
timeliness requirements apply to all PCRA petitions, regardless of
the nature of the individual claims raised therein. The PCRA
squarely places upon the petitioner the burden of proving an
untimely petition fits within one of the three exceptions. . . .
Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations
and footnote omitted).
In the case sub judice, Appellant’s judgment of sentence became final
on February 23, 2000, at the expiration of the time for him to seek review of
his judgment of sentence in the United States Supreme Court. See U.S.
Sup.Ct. R. 13, 28 U.S.C.A.; 42 Pa.C.S.A. § 9545(b)(3). Therefore, he had
one year from that date, until February 23, 2001, to file a petition for
collateral relief unless he pleaded and proved that a timing exception
applied. See 42 Pa.C.S.A. §§ 9545(b)(1)(i)-(iii). Hence, Appellant’s current
petition, filed on February 25, 2016, is untimely on its face unless he pleads
and proves one of the statutory exceptions to the time-bar.
Section 9545 of the PCRA provides only three exceptions that allow for
review of an untimely PCRA petition: (1) the petitioner’s inability to raise a
claim because of governmental interference; (2) the discovery of previously
unknown facts that would have supported a claim; and (3) a newly-
recognized constitutional right. See id. When a petition is filed outside the
one-year time limit, petitioners must plead and prove the applicability of one
of the three exceptions to the PCRA timing requirements. See
-5-
J-S82043-16
Commonwealth v. Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012) (“If
the petition is determined to be untimely, and no exception has been pled
and proven, the petition must be dismissed without a hearing because
Pennsylvania courts are without jurisdiction to consider the merits of the
petition.”) (citation omitted). Also, a PCRA petition invoking one of these
statutory exceptions must “be filed within [sixty] days of the date the claim
could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).
In the case before us, Appellant acknowledges that his petition is
untimely. (See Appellant’s Brief, at 11). However, he fails even to attempt
to plead any of the exceptions to the timeliness requirements. (See id. at
7-15). Instead, he maintains that his petition is not time-barred because he
was illegally sentenced and confined. (See id.). This claim fails.
It is well-settled that, “although illegal sentencing issues cannot be
waived, they still must be presented in a timely PCRA petition.”
Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa. Super. 2013) (citation
omitted). Therefore, Appellant’s argument lacks merit.4 Hence, because
Appellant utterly fails to meet his burden of pleading and proving the
____________________________________________
4
Moreover, Appellant’s argument that he properly sought relief in a habeas
corpus petition because he is time-barred by the PCRA, (see Appellant’s
Brief, at 11), is equally specious. See Taylor, supra at 466 (“Issues that
are cognizable under the PCRA must be raised in a timely PCRA petition and
cannot be raised in a habeas corpus petition. Phrased differently, a
defendant cannot escape the PCRA time-bar by titling his petition or motion
as a writ of habeas corpus.”) (citations and footnote omitted).
-6-
J-S82043-16
applicability of a timeliness exception, the PCRA court properly dismissed his
petition as untimely. See Jones, supra at 16-17; Rykard, supra at 1183;
Johnston, supra at 1126.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2016
-7-