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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GREGORY LEE WILSON,
Appellant No. 339 WDA 2016
Appeal from the PCRA Order October 2, 2015
in the Court of Common Pleas of Warren County
Criminal Division at No.: CP-62-CR-0000043-2010
BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED: September 23, 2016
Appellant, Gregory Lee Wilson, appeals, pro se, from the order of
October 2, 2015, dismissing, without a hearing, his serial petition filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-
9546. Because the petition is untimely without applicable exception, we
affirm.
In an earlier appeal, the trial court summarized the factual and initial
procedural history of this case as follows:
The Commonwealth charged [Appellant] at Warren County
docket number CR 43 of 2010 with one (1) count of [f]ailure to
[c]omply with [r]egistration of [s]exual [o]ffenders
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*
Retired Senior Judge assigned to the Superior Court.
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[r]equirements,[1] and at docket number CR 117 of 2010 with
two [] counts [of p]ossession with [i]ntent to [d]eliver [a
controlled substance], four [] counts [of c]riminal [u]se of a
[c]ommunications [f]acility, and one [] count [of p]ossession []
[s]mall [a]mount of [m]arijuana. On March 29, 2010, [Appellant
pleaded] guilty to one [] count [of f]ailure to [c]omply with
[r]egistration of [s]exual [o]ffenders [r]equirement[s] at docket
number CR 43 of 2010 and one [] count [of p]ossession with
[i]ntent to [d]eliver [a controlled substance] at docket number
CR 117 of 2010. The [Commonwealth] moved to nolle prosqui
[sic] the remaining charges. [On April 19, 2010, the trial court]
sentenced [Appellant to an aggregate term of incarceration of
not less than fifty months nor more than one hundred twenty
months].
[Appellant] filed a [m]otion for [r]econsideration of
[s]entence which [the trial court] denied on May 14, 2010. . . .
(Trial Court Opinion, 4/15/14, at 1) (quotation marks omitted).
Appellant did not file a direct appeal. However, subsequently,
Appellant filed several unsuccessful PCRA petitions.
On March 18, 2015, Appellant, acting pro se, filed the instant PCRA
petition. On September 9, 2015,2 the PCRA court issued notice of its intent
to dismiss the petition pursuant to Pennsylvania Rule of Criminal Procedure
907. See Pa.R.Crim.P. 907(1). On October 2, 2015, the PCRA court
dismissed the petition as untimely. The instant, timely appeal followed. On
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1
In 1989, Appellant was convicted of rape and related sexual offenses.
Thus, he was subject to lifetime sexual offender registration. (See
Commonwealth’s Brief, at 5, 10, 12).
2
It appears that during the pendency of the instant PCRA petition, Appellant
filed a motion to compel the PCRA court to act on the petition with this
Court. On August 27, 2015, this Court directed the PCRA court to act on the
petition within sixty days.
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November 6, 2015, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal. See Pa.R.A.P. 1925(b). This
Court has been unable to locate Appellant’s Rule 1925(b) statement.
However, on March 1, 2016, the PCRA court issued an opinion, which
specifically references such a statement and does not describe it as
untimely, so we will deem it filed timely. (see Trial Court Opinion, 3/01/15,
at unnumbered page 1); see also Pa.R.A.P. 1925(a).
On appeal, Appellant raises the following questions for our review:
1. Whether [A]ppellant’s conviction was under 2004 Pa. Laws §
[] 1243, No. 152 (Act 152) in [sic] opposed to Act 178 of 2006;
whereas, Appellant maxed out his term prior to the enactment of
Act 178, Act 152 of 2004 was deemed unconstitutional
December 16, 2013?
2. Whether newly discovered information and/or evidence must
be filed within sixty days [Appellant] came into knowledge of the
newly discovered information and/or evidence pursuant to § []
9545 [sic]?
(Appellant’s Brief, at 3).
Appellant appeals from the denial of his serial PCRA petition. To be
eligible for relief pursuant to the PCRA, Appellant must establish that his
conviction or sentence resulted from one or more of the enumerated errors
or defects found in 42 Pa.C.S.A. § 9543(a)(2). Our standard of review for
an order denying PCRA relief is well settled:
This Court’s standard of review regarding a PCRA court’s
order is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Great deference is granted to the findings of the PCRA court, and
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these findings will not be disturbed unless they have no support
in the certified record.
Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations
and quotation marks omitted). However, “if a PCRA [p]etition is untimely, a
trial court has no jurisdiction to entertain the petition.” Commonwealth v.
Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted).
In the instant matter, Appellant filed his PCRA petition on March 18,
2015. The PCRA provides that “[a]ny petition under this subchapter,
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). A
judgment becomes final for PCRA purposes “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).
Here, Appellant’s sentence became final on June 13, 2010, thirty days
after the trial court denied his motion for reconsideration of sentence and
Appellant did not file a direct appeal with this Court. See id.; Pa.R.A.P.
903(a). Therefore, Appellant had one year, until June 13, 2011, to file a
timely PCRA petition. Because Appellant did not file this petition until March
18, 2015, the petition is facially untimely. Thus, to obtain PCRA relief, he
must plead and prove that his claim falls under one of the statutory
exceptions to the one-year time bar provided at section 9545(b). See 42
Pa.C.S.A. § 9545(b)(1)(i)-(iii).
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Section 9545 provides that the court can still consider an untimely
petition where the petitioner successfully pleads and proves that:
(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.
Further, a petitioner who wishes to invoke any of the above exceptions
must file the petition “within 60 days of the date the claim could have been
presented.” Id. at § 9545(b)(2). The Pennsylvania Supreme Court has
repeatedly stated that it is an appellant’s burden to plead and prove that one
of the above-enumerated exceptions applies. See, e.g., Commonwealth
v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008), cert. denied, 555 U.S. 916
(2008).
Here, Appellant contends that he qualifies under the newly discovered
facts exception. (See Appellant’s Brief, at 7). However, Appellant’s “fact”
consists of the Pennsylvania Supreme Court’s decision in Commonwealth
v. Neiman, 84 A.3d 603 (Pa. 2013), which declared Act 152, which included
the relevant Megan’s Law III provisions, unconstitutional. (See id. at 6-7).
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It is well-settled that a new judicial opinion does not constitute a newly
discovered fact for purposes of 42 Pa.C.S.A. § 9545(b)(1)(ii). See
Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011). In fact, “[o]ur
Courts have expressly rejected the notion that judicial decisions can be
considered newly-discovered facts which would invoke the protections
afforded by section 9545(b)(1)(ii).” Commonwealth v. Cintora, 69 A.3d
759, 763 (Pa. Super. 2013), appeal denied, 81 A.3d 75 (Pa. 2013) (citations
omitted). In Watts, our Supreme Court stated:
Law is a principle; fact is an event. Law is conceived; fact is
actual. Law is a rule of duty; fact is that which has been
according to or in contravention of the rule. Put another way, A
‘fact,’ as distinguished from the ‘law,’ . . . [is that which] is to be
presumed or proved to be or not to be for the purpose of
applying or refusing to apply a rule of law. Consistent with these
definitions, an in-court ruling or published judicial opinion is law,
for it is simply the embodiment of abstract principles applied to
actual events. The events that prompted the analysis, which
must be established by presumption or evidence, are regarded
as fact.
Watts, supra at 986-87 (some quotation marks and citations omitted).
Thus, the Pennsylvania Supreme Court’s decision in Neiman cannot
constitute a newly discovered fact. See Watts, supra at 987; Cintora,
supra at 763.
Moreover, even if we were to hold that the Neiman decision
constituted a newly discovered fact, Appellant’s claim would fail because he
did not file the instant PCRA petition “within 60 days of the date the claim
could have been presented.” 42 Pa.C.S.A. § 9545(b)(2). To comply with
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the sixty-day requirement, Appellant had to file his petitions within sixty
days from the date of the court’s decision, not sixty days from the date he
became aware of the decision. See Cintora, supra at 763-64. The
Pennsylvania Supreme Court’s filed its decision in Neiman on December 16,
2013. Appellant filed his petition on March 18, 2015, over one year later.
Thus, the petition was untimely on this basis as well.
Therefore, because the record demonstrates that Appellant’s PCRA
petition is untimely with none of the statutory exceptions to the time bar
proven,3 we affirm the order of the trial court dismissing Appellant’s serial
PCRA petition.
Order affirmed.
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3
Even if Appellant had attempted to claim an exception under §
9545(b)(1)(iii) and had brought his claim within sixty days of the Neiman
decision, his claim would have failed because he has not proven that a
“constitutional right” recognized in Neiman “has been held by [our Supreme
Court] to apply retroactively.” 42 Pa.C.S.A. § 9545(b)(1)(iii). Our review of
Neiman confirms that our Supreme Court did not direct that the decision
was to apply retroactively. Moreover, the Neiman decision did not discuss
the effects of its ruling on cases that had become final before it was decided.
Thus, it cannot be said that the right asserted by Appellant “has been held
by [our Supreme Court] to apply retroactively.” 42 Pa.C.S.A. §
9545(b)(1)(iii). Therefore, Appellant has not met the requirements of
Section 9545(b)(1)(iii).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/23/2016
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