Com. v. Carwheel, R.

• Court: Superior Court of Pennsylvania
• Decided: February 9, 2018
• Docket: 3662 EDA 2016
• Status: Unpublished

Opinion

J-S83041-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : RAZEEK CARWHEEL : : Appellant : No. 3662 EDA 2016

Appeal from the PCRA Order October 19, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0012022-2007

BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J.

JUDGMENT ORDER BY GANTMAN, P.J.: FILED FEBRUARY 09, 2018

Appellant, Razeek Carwheel, appeals pro se from the order entered in

the Philadelphia County Court of Common Pleas, which denied his second

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), at 42

Pa.C.S.A. §§ 9541-9546. On August 19, 2009, a jury convicted Appellant in

absentia of possession with the intent to distribute (“PWID”) and criminal

conspiracy to commit PWID. The court sentenced Appellant in absentia on

October 2, 2009, to an aggregate term of 10-20 years’ incarceration.

Appellant sought no direct review. So, the judgment of sentence became

final on November 1, 2009. On September 6, 2012, Appellant filed his first

PCRA petition, which was ultimately unsuccessful.

Appellant filed his second, current pro se PCRA petition on March 27,

2015, and an amended second pro se PCRA petition on July 20, 2015. On J-S83041-17

July 12, 2016, the PCRA court issued Rule 907 notice; Appellant filed a pro

se response on August 12, 2016. On October 19, 2016, the PCRA court

denied Appellant’s PCRA petition. Appellant timely filed a pro se notice of

appeal on November 14, 2016. The PCRA court did not order a Rule 1925(b)

statement, and Appellant filed none.

The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A PCRA

petition, including a second or subsequent petition, shall be filed within one

year of the date the underlying judgment of sentence becomes final. 42

Pa.C.S.A. § 9545(b)(1). A judgment of sentence is deemed 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(b)(3). The

statutory exceptions to the PCRA time-bar allow for very limited

circumstances which excuse the late filing of a petition; a petitioner

asserting a timeliness exception must file a petition within 60 days of when

the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(1-2). To

assert the newly created constitutional right exception per Section

9545(b)(1)(iii), “a petitioner must prove that there is a new constitutional

right and that the right has been held by that court to apply retroactively.”

Commonwealth v. Chambers, 35 A.3d 34, 41 (Pa.Super. 2011), appeal

denied, 616 Pa. 625, 46 A.3d 715 (2012). Under the Section 9545(b)(1)(iii)

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exception, the 60-day rule runs from the filing date of the cited decision.

Commonwealth v. Secreti, 134 A.3d 77, 80 (Pa.Super. 2016).

Instantly, Appellant’s judgment of sentence became final on November

1, 2009, upon expiration of the 30-day period for filing a direct appeal. See

Pa.R.A.P. 903(a). Appellant filed the current pro se PCRA petition on March

27, 2015, which is patently untimely. Appellant attempts to invoke the “new

constitutional right” exception citing: Alleyne v. United States, 570 U.S.

99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013); Commonwealth v. Hopkins,

632 Pa. 36, 117 A.3d 247, (2015); Commonwealth v. Warren, 84 A.3d

1092 (Pa.Super. 2014); and Commonwealth v. Munday, 78 A.3d 661

(Pa.Super. 2013).1 The cases Appellant cites, however, do not serve as

exceptions to the PCRA time-bar under these circumstances. See

Commonwealth v. Washington, 636 Pa. 301, 142 A.3d 810 (2016)

(holding new constitutional rule announced in Alleyne is not substantive or

watershed procedural rule that warrants retroactive application to collateral

attacks on mandatory minimum sentences, where judgment of sentence

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1 Appellant cites the following cases for the first time in his brief on appeal: Welch v. United States, ___ U.S. ___, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016); Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015); and Commonwealth v. Barnes, 637 Pa. 493, 151 A.3d 121 (2016). To the extent Appellant attempts to rely upon these cases to satisfy the “new constitutional right” exception to the PCRA time-bar, Appellant’s argument is waived. See Pa.R.A.P. 302(a) (stating: “Issues not raised in the [trial] court are waived and cannot be raised for the first time on appeal”).

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became final before Alleyne was decided); Commonwealth v.

Whitehawk, 146 A.3d 266 (Pa.Super. 2016) (holding Hopkins did not

announce new constitutional rule, and even if it had, neither United States

Supreme Court nor Pennsylvania Supreme Court has held Hopkins applies

retroactively on collateral review); 42 Pa.C.S.A. § 9545(b)(1)(iii) (providing

new constitutional right must be recognized by Supreme Court of United

States or Supreme Court of Pennsylvania). Additionally, Appellant failed to

file his current petition within 60 days of Alleyne, decided on June 17, 2013,

Warren, decided on January 29, 2014, and Munday, decided on October

10, 2013. See Secreti, supra; 42 Pa.C.S.A. § 9545(b)(2), supra.

Therefore, Appellant’s petition remains time-barred, the PCRA court lacked

jurisdiction to review it on the merits, and the court properly dismissed it as

untimely. See Zeigler, supra. Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/9/18

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