Com. v. Winston, W ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
WILLIAM WINSTON :
:
Appellant : No. 716 EDA 2019
Appeal from the PCRA Order Entered February 21, 2019
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0402771-1975
BEFORE: PANELLA, P.J., STABILE, J., and STEVENS, P.J.E.
MEMORANDUM BY PANELLA, P.J.: FILED MARCH 03, 2020
William Winston, pro se, appeals from the order entered in the
Philadelphia County Court of Common Pleas, which denied as untimely his
fourth post-conviction petition, but the first that was filed pursuant to the Post
Conviction Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. After review,
we find that Winston’s petition is facially untimely, and he has failed to prove
any of the three statutory exceptions to the PCRA’s time-bar. Therefore, the
PCRA court correctly concluded that it lacked jurisdiction to consider the merits
of his petition, and correspondingly, we affirm.
Winston was found guilty by a jury of second-degree murder, attempted
rape, and aggravated assault on November 24, 1975. The court sentenced
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 Former Justice specially assigned to the Superior Court.
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Winston to life in prison without the possibility of parole plus three to ten years
on June 7, 1976.
Winston filed a counseled notice of appeal to our Supreme Court on the
same date he was sentenced. Several months later, while his appeal was still
pending, Winston filed a pro se petition, his first, under the PCRA’s
predecessor, the Post Conviction Hearing Act (“PCHA”). The PCHA court
dismissed the petition as premature. Thereafter, Winston instructed his direct
appeal counsel to discontinue his appeal, which resulted in that appeal’s
abandonment.
Winston then filed, pro se, his second petition pursuant to the PCHA.
Counsel was appointed and an amended petition was filed. That petition was
ultimately dismissed, and our Supreme Court affirmed the PCHA court’s
dismissal order. Several years later, Winston filed, again pro se, his third PCHA
petition. That petition was dismissed as meritless by the PCHA court, and
Winston did not pursue any appeal from his third petition’s dismissal.
On January 13, 2016, Winston, pro se in this instance as well, filed the
present PCRA petition, which was found to be untimely by the PCRA court.
Winston timely appealed this decision.
This Court's standard of review as to an order dismissing a PCRA petition
is whether the determination of the PCRA court is supported by the record
evidence and is free of legal error. See Commonwealth v. Hart, 911 A.2d
939, 941 (Pa. Super. 2006) (citation omitted). The PCRA court's findings will
not be disturbed unless there is no support for the findings in the certified
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record. See Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.
2001).
Prior to addressing any of the claims in Winston’s petition, we must first
consider the petition’s timeliness. See Commonwealth v. Miller, 102 A.3d
988, 992 (Pa. Super. 2014).
A PCRA petition, including a second or subsequent one, must be
filed within one year of the date the petitioner’s judgment of
sentence becomes 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 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) (some internal
citations and footnote omitted).
Winston’s judgment of sentence became final on July 8, 1977, the date
his direct appeal was withdrawn while pending before our Supreme Court. See
Commonwealth v. DiVentura, 734 A.2d 397, 399 (Pa. Super. 1999)
(identifying that the petitioner’s “judgment of sentence became final … when
he withdrew his direct appeal”). Accordingly, July 10, 1978,1 is the operative
date for the PCRA’s time-bar, and any petition filed after that date is untimely.
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1July 8, 1978, fell on a Saturday. Therefore, Winston had until the following
Monday to file a timely petition. See 1 Pa.C.S.A. § 1908.
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See id. (discussing the 1995 amendment to the PCRA which allowed any
petitioner with a final judgment of sentence prior to its effective date to file,
within one year, his or her first PCRA petition, but also finding that the filing
of a PCHA petition is equivalent to a prior-filed PCRA petition). Winston’s
instant and fourth post-conviction petition, filed over thirty-five years after his
judgment of sentence became final, is facially untimely. However, there are
three statutory exceptions that, if he were to successfully plead and prove any
one of them, Winston could use to surmount the PCRA’s time-bar. See 42
Pa.C.S.A. § 9545(b)(1)(i-iii).
The PCRA’s three time-bar exceptions are as follows:
(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;
(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.
Id. A petitioner asserting any one of these exceptions must file a petition
within one year of the date the claim could have first been presented. See 42
Pa.C.S.A. § 9545(b)(2). Nevertheless, if the claim arose prior to December
24, 2017, the petitioner would have only had sixty days to assert that claim.
See id.
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Winston has filed the present petition as a pro se litigant.
Although this Court is willing to construe liberally materials filed
by a pro se litigant, pro se status generally confers no special
benefit upon an appellant. Accordingly, a pro se litigant must
comply with the procedural rules set forth in the Pennsylvania
Rules of the Court. This Court may quash or dismiss an appeal if
an appellant fails to conform with the requirements set forth in
the Pennsylvania Rules of Appellate Procedure.
Commonwealth v. Lyons, 833 A.2d 245, 251–52 (Pa. Super. 2003)
(citations omitted).
The only basis presented in Winston’s brief to circumvent the PCRA’s
time-bar is the newly discovered facts exception. See Appellant’s Brief, at 7
(“Did the PCRA [c]ourt err when it denied [Winston’s] timeliness exception
pursuant to [42 Pa.C.S.A] § 9545(b)(ii) based on a faulty reading of
Com[monwealth] v. Burton, [121 A.3d 1063 (Pa. Super. 2015)]?”). To the
best of our ability in interpreting Winston’s argument, Winston asserts that his
“life sentence without parole is illegal under [18 Pa.C.S.A. §] 2502(b),”
Appellant’s Brief, at 13, based on some combination of what he has titled
Pennsylvania Act No. 46, H.B. 1060 P.L. 213 (“Act 46”) as well as 18 Pa.C.S.A.
§ 1103(1). Further, Winston asserts that his petition is timely under Burton
because he employed “robust efforts in due diligence [to ascertain] the
legislative language,” Appellant’s Brief, at 13, informing him of the illegality
of his life sentence.
Although he does not provide us with the date for his discovery of what
he submits are newly discovered facts, we will assume without actually
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deciding that Winston acted with due diligence in making his discovery. In
Burton, we held that, when assessing due diligence in uncovering what would
thereafter be purportedly newly discovered facts, the presumption of access
to publically available information does not apply to pro se petitioners. See
121 A.3d at 1073.
In essence, Winston relies upon the fact that Act 46 apparently defines
second-degree murder as a first-degree felony. Winston then uses this
definition to suggest that his term of imprisonment for his second-degree
murder offense should not have been more than twenty years pursuant to 18
Pa.C.S.A. § 1103(1).
First, Winston was sentenced under 18 Pa.C.S.A. § 1102(b) rather than
18 Pa.C.S.A. § 1103(1).2 Section 1102(b) mandates that a defendant
convicted of second-degree murder “shall be sentenced to a term of life
imprisonment.” 18 Pa.C.S.A. § 1102(b). Second, a statute or act in existence
at the time of Winston’s trial is not a “new fact” within the meaning of the
PCRA. See Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011)
(distinguishing a “fact” from the “law”).
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2 The Commonwealth correctly notes that if Winston’s argument is based on
Commonwealth v. McKenna, 383 A.2d 174 (Pa. 1978), which Winston cited
in his petition, it still fails. McKenna found 18 Pa.C.S.A. § 1102(a)
unconstitutional, as it allowed for “unfettered discretion in imposition of the
death penalty.” See id., at 179. The court did not sentence Winston under
section 1102(a), but rather section 1102(b), which did not provide for the
imposition of the death penalty and therefore was not affected by McKenna.
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Accordingly, Winston has failed to plead and prove any exception to the
PRCA’s time-bar. Therefore, the PCRA court did not err in dismissing his
patently untimely petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/3/20
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