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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JEROME SMITH :
:
Appellant : No. 878 EDA 2018
Appeal from the PCRA Order March 2, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0811161-2005
BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED APRIL 26, 2019
Appellant, Jerome Smith, appeals pro se from the order entered on
March 2, 2018, dismissing as untimely his second petition filed pursuant to
the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
We briefly summarize the facts and procedural of this case as follows.
On July 31, 2006, a jury found Appellant guilty of first-degree murder and
possessing an instrument of crime. On the same day, the trial court sentenced
Appellant to a mandatory term of life imprisonment for first-degree murder,
with a concurrent term of one to five years of imprisonment for possessing an
instrument of crime. This Court affirmed Appellant’s judgment of sentence
and our Supreme Court denied further review. See Commonwealth v.
Smith, 953 A.2d 839 (Pa. Super. 2008) (unpublished memorandum), appeal
denied, 960 A.2d 839 (Pa. 2008). On March 30, 2009, Appellant filed a timely
PCRA petition. The PCRA court appointed counsel who filed an amended PCRA
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petition. The PCRA court denied relief on the amended petition on April 23,
2010. Thereafter, following a convoluted procedural history not relevant to
the current appeal, our Court affirmed the PCRA court’s dismissal of
Appellant’s 2009 PCRA petition on June 28, 2012. See Commonwealth v.
Smith, 53 A.3d 943 (Pa. Super. 2012) (unpublished memorandum). Our
Supreme Court denied further review. See Commonwealth v. Smith, 57
A.3d 70 (Pa. 2012).
On November 27, 2017, Appellant, acting pro se, filed his second PCRA
petition. On February 2, 2018, the PCRA court issued notice, pursuant to
Pa.R.Crim.P. 907, of its intent to dismiss Appellant’s petition without a
hearing. The PCRA court deemed the petition untimely and cited Appellant’s
failure to satisfy an exception to the PCRA’s timeliness requirements as set
forth at 42 Pa.C.S.A. § 9545(b)(1). Appellant filed a pro se response on
February 21, 2018. On March 2, 2018, the PCRA court dismissed Appellant’s
PCRA petition as untimely. This appeal resulted.1
On appeal, Appellant presents the following issues,2 pro se, for our
review:
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1 Appellant filed a pro se notice of appeal on March 20, 2018. The PCRA
court ordered Appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b) on March 27, 2018. Appellant complied
timely. On July 17, 2018, the PCRA court issued an opinion pursuant to
Pa.R.A.P. 1925(a).
2 We have revised Appellant’s second issue for clarity.
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1. Whether the PCRA court erred when [it] ruled that Appellant’s
PCRA petition was untimely?
2. Whether the PCRA court erred when it determined trial counsel
did not provide ineffective assistance for not objecting to the
trial court’s failure to follow the sentencing procedure outlined
under 42 Pa.C.S.A. § 9711(a)(1)?3
Appellant’s Brief at 3.
Appellant first claims that the trial court erred by dismissing his most
recent PCRA petition as untimely because he raised the “newly-discovered
fact” exception to the PCRA’s one year jurisdictional time requirement. Id. at
6. In his second issue presented, Appellant claims that trial counsel was
ineffective for failing to object to the trial court’s imposition of life
imprisonment without a jury determination at the penalty phase pursuant to
42 Pa.C.S.A. § 9711(a)(1). Id. at 8. As such, Appellant claims “the trial judge
usurped authority from the jury to determine the penalty and [] trial counsel
failed to register an objection which constitutes a miscarriage of justice.” Id.
Appellant maintains that he learned of his claim “[o]n November 22, 2017,
[when he] attended a PCRA class [in prison] where [he] learned that trial
counsel provided deficient performance[.]” Id. at 4.
When reviewing the denial of a PCRA petition, our standard of review is
limited to
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3 Section 9711(a)(1) provides that “[a]fter a verdict of murder of the first[-]
degree is recorded and before the jury is discharged, the court shall conduct
a separate sentencing hearing in which the jury shall determine whether the
defendant shall be sentenced to death or life imprisonment.” 42 Pa.C.S.A.
§ 9711(a)(1). Section 9711 was enacted in 1974 and was most recently
amended in 1999.
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whether the PCRA court's determination is supported by evidence
of record and whether it is free of legal error. When reviewing the
denial of a PCRA petition without an evidentiary hearing, we
determine whether the PCRA court erred in concluding that there
were no genuine issues of material fact and in denying relief
without an evidentiary hearing. When there are no disputed
factual issues, an evidentiary hearing is not required. We review
the PCRA court's legal conclusions de novo.
The newly discovered facts exception, Section 9545(b)(1)(ii),
relates to whether a court has jurisdiction to consider
an untimely petition.[4] It does not require a merits analysis. A
petitioner satisfies the newly discovered facts exception when the
petitioner pleads and proves that (1) the facts upon which the
claim is predicated were unknown and (2) could not have been
ascertained by the exercise of due diligence. Due diligence
requires reasonable efforts by a petitioner, based on the particular
circumstances, to uncover facts that may support a claim for
collateral relief, but does not require perfect vigilance or
punctilious care.
Commonwealth v. Hart, 199 A.3d 475, 481 (Pa. Super. 2018) (internal
citations, quotations. brackets, and ellipses omitted; emphasis in original).
In this case, Appellant contends that he recently discovered statutory
law, applicable at the time of his trial, to support a current claim of ineffective
assistance of counsel. Specifically, Appellant claims that trial counsel provided
ineffective assistance of counsel when he failed to object to the trial court’s
imposition of life imprisonment without first requiring the jury to decide
whether to apply a death sentence or life imprisonment as set forth at Section
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4 All PCRA petitions, “including a second or subsequent petition, shall be filed
within one year of the date the judgment becomes final, unless the petition
alleges and the petitioner proves” one of the three enumerated exceptions.
42 Pa.C.S.A. § 9545(b)(1). Here, there is no dispute that Appellant’s
judgment of sentence became final in 2009. Thus, his current PCRA petition
filed in November 2017 is patently untimely.
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9711(a)(1). The timeliness exception under section 9545(b)(1)(ii), however,
relates to the discovery of facts previously unknown to a petitioner, but not to
the subsequent discovery of extant law applicable at the time of trial.
Regarding section 9545(b)(1)(ii), our Supreme Court previously determined:
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.
Commonwealth v. Watts, 23 A.3d 980, 986-987 (Pa. 2011). The Watts
Court ultimately held that “decisional law[5] does not amount to a new ‘fact’
under section 9545(b)(1)(ii) of the PCRA.” Watts, 23 A.3d at 987. Here,
Appellant seeks to litigate an ineffective assistance claim and asserts that a
timeliness exception applies because he recently learned about section
9711(a)(1). Appellant’s discovery, however, did not reveal a new “fact” within
the meaning of section 9545(b)(1)(ii). Moreover, as set forth above, section
9711 was enacted in 1974 and last amended in 1999. As such, the law was
in effect at the time of Appellant’s trial and his current claim could have been
ascertained earlier through the exercise of due diligence. Accordingly,
Appellant failed to plead and prove an exception to the PCRA’s one-year
jurisdictional time requirement. Because there were no disputed factual
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5 While cases cited by the trial court and the Commonwealth deal with
whether decisional law constitutes a “fact” under section 9545(b)(1)(ii),
obviously statutory law falls under the same definition as established in
Watts.
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issues, an evidentiary hearing was not required. Hence, the PCRA court
properly dismissed Appellant’s PCRA petition without a hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/26/19
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