J-A18014-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

MARK WHITAKER

Appellant No. 1517 EDA 2017

Appeal from the PCRA Order entered April 19, 2017

In the Court of Common Pleas of Philadelphia County

Criminal Division at No: CP-51-CR-0413791-2002

BEFORE: STABILE, J., STEVENS, P.J.E.,* and STRASSBURGER, J.**

MEMORANDUM BY STABILE, J.: FILED DECEMBER 31, 2018

Appellant, Mark Whitaker, appeals pro se from the April 19, 2017 order 

of the Court of Common Pleas of Philadelphia County dismissing as untimely 

his petition for collateral relief under the Post Conviction Relief Act (PCRA), 42 

Pa.C.S.A. §§ 9541-46, and denying his habeas corpus claim. We affirm. 

The facts of the case are not at issue here. We summarized the relevant 

facts in our opinion issued in connection with Appellant’s direct appeal. See 

Commonwealth v. Whitaker, 878 A.2d 914 (Pa. Super. 2005). On June 30, 

2005, we affirmed the judgment of sentence. On December 21, 2005, the 

Supreme Court denied allocatur. 

____________________________________________

* Former Justice specially assigned to the Superior Court.

** Retired Senior Judge assigned to the Superior Court.
J-A18014-18

- 2 -

Appellant filed his first PCRA petition on October 26, 2006. The PCRA 

court denied it on March 19, 2009. On appeal, we reversed in part, remanding 

to the PCRA court to address one issue (ineffective assistance of counsel). 

See Commonwealth v Whitaker, No. 1027 EDA 2009, unpublished 

memorandum (Pa. Super. filed July 1, 2010).

On remand, after holding a hearing, the PCRA court denied Appellant’s 

petition on October 7, 2011. Appellant timely appealed the denial of PCRA 

relief. 

On December 29, 2011, while the appeal on the denial of his first PCRA 

petition was still pending, Appellant filed another PCRA petition, his second, 

alleging “newly-discovered” facts (alibi witness). Other than the filing itself, 

there is no indication that Appellant pursued the second petition, even after 

the disposition of the appeal on the first PCRA petition. 

On December 13, 2012, we affirmed the order of the PCRA court denying 

Appellant’s first petition. See Commonwealth v. Whitaker, No. 3139 EDA 

2011, unpublished memorandum (Pa. Super. filed December 13, 2012). 

On June 21, 2013, Appellant filed a petition for leave to file a petition 

for allowance of appeal nunc pro tunc.

On August 22, 2013, a civil action commenced by Appellant in the civil 

division of the trial court was transferred to the criminal division. In his civil 

action, Appellant alleged that his judgment of sentence was illegal for lack of 
J-A18014-18

- 3 -

authority to impose it, and his detention was unlawful on due process grounds 

for lack of a sentencing order.1

On September 6, 2013, the Supreme Court granted Appellant’s petition 

for allowance of appeal nunc pro tunc. Appellant promptly proceeded to file 

his petition for allowance of appeal. The Supreme Court denied allocatur on 

March 11, 2014. 

On February 22, 2017, the PCRA court issued a notice pursuant to 

Pa.R.Crim.P. 907 notifying Appellant of its intention to deny the August 22, 

2013 petition (as supplemented), his third PCRA petition, on timeliness 

grounds to the extent he challenged the legality of his sentence. Regarding 

the legality of his detention claim, the court, treating it as subject to habeas 

corpus review, and similarly concluded that Appellant was not entitled to relief. 

On March 6, 2017, Appellant filed an objection to the notice, challenging 

the PCRA court’s characterization of his lack of a sentencing order claim as a 

claim falling within the purview of the PCRA. 

The PCRA court dismissed Appellant’s third PCRA petition on April 19, 

2017, and denied the habeas corpus claim. This appeal followed.

On appeal, Appellant raises three issues: (i) his judgment of sentence 

is illegal for lack of authority to impose it, (ii) his detention was unlawful for 

____________________________________________

1 On December 10, 2013, Appellant supplemented his August 22, 2013 filing

alleging, in addition, fraud and violation of due process of law. See “Motion 

for Leave of Court to File a Supplemental Act,” 12/10/13. 
J-A18014-18

- 4 -

lack of a sentencing order, and, (iii) the PCRA court failed to address the 

“newly-discovered” fact, which he raised in his second petition. 

All PCRA petitions, “including a second or subsequent petition, shall be 

filed within one year of the date the judgment becomes final.” 42 Pa.C.S.A. 

§ 9545(b)(1). The one-year time limitation, however, can be overcome if a 

petitioner (1) alleges and proves one of the three exceptions set forth in 

Section 9545(b)(1)(i)-(iii) of the PCRA, and (2) files a petition raising this 

exception within sixty days of the date the claim could have been presented. 

42 Pa.C.S.A. § 9545(b)(2). 

“The PCRA’s time restrictions are jurisdictional in nature. Thus, [i]f a 

PCRA petition is untimely, neither this Court nor the [PCRA] court has 

jurisdiction over the petition. Without jurisdiction, we simply do not have the 

legal authority to address the substantive claims.” Commonwealth v. 

Chester, 895 A.2d 520, 522 (Pa. 2006) (first alteration in original) (internal 

citations and quotation marks omitted). As timeliness is separate and distinct

from the merits of Appellant’s underlying claims, we first determine whether 

this PCRA petition is timely filed. See Commonwealth v. Stokes, 959 A.2d 

306, 310 (Pa. 2008) (consideration of Brady claim separate from 

consideration of its timeliness). The timeliness requirements of the PCRA 

petition must be met, even if the underlying claim is a challenge to the legality 

of the sentence. See Commonwealth v. Holmes, 933 A.2d 57, 60 (Pa. 

2007) (“Although legality of sentence is always subject to review within the 

PCRA, claims must still first satisfy the PCRA’s time limits or one of the 
J-A18014-18

- 5 -

exceptions thereto”) (citing Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 

1999)).

Instantly, Appellant’s judgment of sentence became final on March 21, 

2006, when the ninety-day period for filing a writ of certiorari with the United 

States Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct.R. 

13. Appellant filed the instant PCRA petition on August 22, 2013, 

approximately seven years after his judgment of sentence became final. As 

such, the instant petition is patently untimely, unless Appellant pleaded and 

proved that one of the enumerated exceptions applies. 

Appellant failed to plead and prove the applicability of any exception to 

the PCRA’s time restrictions. This omission is fatal to his PCRA claims subject 

the instant appeal. See Commonwealth v. Wilson, 824 A.2d 331, 336 (Pa. 

Super. 2003) (“Appellant’s failure to timely file his PCRA petition, and his 

failure to invoke any of the exceptions to the timeliness requirements of the 

PCRA, results in an untimely PCRA petition under any analysis.”); Holmes, 

supra.

Accordingly, to the extent, Appellant challenges the legality of his

sentence for lack of statutory authority to impose it, we conclude the PCRA 

court properly denied the instant petition as untimely.

2

____________________________________________

2 Appellant argues that he did not address the timeliness of the instant petition 

because the petition was originally filed as a civil action and only subsequently 

(approximately two weeks later) was transferred to the criminal division of the 

same court. Although Appellant was aware that the original action would be 
J-A18014-18

- 6 -

Appellant next challenges the court’s decision to deny relief on the 

absence of a sentencing order claim. As noted, Appellant argues that the 

absence of a sentencing order violates his due process rights, making his 

detention unlawful. 

“The Pennsylvania Supreme Court, albeit in a per curiam opinion, has 

held that a claim that a defendant’s sentence is illegal due to the inability of 

the DOC to ‘produce a written sentencing order related to [his] judgment of 

sentence’ constitutes a claim legitimately sounding in habeas corpus.” 

Joseph v. Glunt, 96 A.3d 365, 368 (Pa. Super. 2014) (citations omitted).3

____________________________________________

treated as a PCRA petition before the criminal division of the trial court, see 

Appellant’s Brief at 9, at no time did Appellant attempt to establish the 

timeliness of his petition until the PCRA court denied it on grounds of 

timeliness. 

3

In Joseph, appellant argued that the absence of a sentencing order, in 

violation of 42 Pa.C.S.A. § 9764 (relating to information required upon 

confinement and subsequent disposition), resulted in a violation of his due 

process rights, compelling his release from prison. We disagreed, noting:

The language and structure of section 9764, viewed in context, 

make clear that the statute pertains not to the [Department of 

Corrections]’s authority to detain a duly-sentenced prisoner, but, 

rather, sets forth the procedures and prerogatives associated with 

the transfer of an inmate from county to state detention. None of 

the provisions of section 9764 indicate[s] an affirmative obligation 

on the part of the [Department of Corrections] to maintain and 

produce the documents enumerated in subsection 9764(a) upon 

the request of the incarcerated person. Moreover, section 

9764 neither expressly vests, nor implies the vestiture, in a 

prisoner of any remedy for deviation from the procedures 

prescribed within.

Joseph, 96 A.3d at 371 (footnote omitted).
J-A18014-18

- 7 -

When reviewing the denial of a petition for a writ of habeas corpus, we 

are guided by the following:

Our standard of review of a trial court’s order denying a petition 

for writ of habeas corpus is limited to abuse of discretion. 

See Commonwealth, Dep't of Corrections v. Reese, 774 A.2d 

1255, 1261 (Pa. Super. 2001). Thus, we may reverse the court's 

order where the court has misapplied the law or exercised its 

discretion in a manner lacking reason. See Lachat v. 

Hinchcliffe, 769 A.2d 481, 487 (Pa. Super. 2001) (defining 

abuse of discretion). As in all matters on appeal, the appellant 

bears the burden of persuasion to demonstrate his entitlement to 

the relief he requests. See Miller v. Miller, 744 A.2d 778, 788 

(Pa. Super. 1999).

Commonwealth ex rel. Fortune v. Dragovich, 792 A.2d 1257, 1259 (Pa.

Super. 2002), appeal denied, 803 A.2d 732 (Pa. 2002).

Even in the absence of a sentencing order, it is well-established that the 

Department of Corrections has continuing authority to detain an inmate 

where, as in the instant matter, there is a record of a valid imposition of 

sentence. Notice, 2/22/17 at 1 (citing Joseph, 96 A.3d at 372); PCRA Court 

Opinion, 5/30/17, at 4-5 (relying on Joseph, supra, the PCRA court found,

“Upon review, the [presiding judge] entered a sentencing order in this matter 

on December 29, 2003 and [Appellant]’s sentence was accurately docketed.”). 

In light of the foregoing, we conclude Appellant is not entitled to any 

relief on his habeas corpus claim.

Finally, Appellant argues the PCRA court erred in not addressing his 

“newly-discovered fact” claim, which, as noted, was raised in his second PCRA 

petition. A review of the record indicates that Appellant did not pursue the 
J-A18014-18

- 8 -

claim before the PCRA court, despite having multiple opportunities and the 

time to do so. Among other things, Appellant did not raise the second PCRA 

petition issue in his response to the PCRA court’s Rule 907 notice, and did not 

file a Rule 1925(a) statement. The issue is therefore waived. See Pa.R.A.P. 

302(a) (“Issues not raised in the lower court are waived and cannot be raised 

for the first time on appeal”); Commonwealth v. Paddy, 15 A.3d 431, 446 

(Pa. 2011) (“[f]ailure to raise an issue before the PCRA court results in 

waiver.”); Commonwealth v. Pitts, 981 A.2d 875, 879 (Pa. 2009) 

(Defendant waived his appellate argument challenging the adequacy of PCRA

counsel’s no-merit letter, where defendant failed to raise the issue within the 

20-day period provided by rule to file a reply before the court dismissed the 

post-conviction petition).

Order affirmed. 

President Judge Emeritus Stevens joins the memorandum.

Judge Strassburger concurs in the result. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/31/18