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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONALD GREGORY SPRANKLE :
:
Appellant : No. 1365 WDA 2022
Appeal from the PCRA Order Entered October 26, 2022
In the Court of Common Pleas of Jefferson County Criminal Division at
No(s): CP-33-CR-0000265-2013
BEFORE: OLSON, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY OLSON, J.: FILED: OCTOBER 10, 2023
Appellant, Donald Gregory Sprankle, appeals pro se from the order
entered on October 26, 2022, dismissing as untimely his fourth petition filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.
We affirm.
We previously set forth the facts and procedural history of this case as
follows:
On July 12, 2013, the Commonwealth charged Appellant with 25
counts each of indecent assault—person less than 13, corruption
of minors, and aggravated indecent assault of a child, a
first-degree felony, arising from crimes Appellant committed in
2006 and 2007. On September 4, 2013, Appellant entered a
negotiated guilty plea to 2 counts each of aggravated indecent
assault, a second-degree felony, and corruption of minors.[fn]
On January 3, 2014, the court sentenced Appellant to two
consecutive terms of 5 to 10 years’ incarceration for his
aggravated indecent assault convictions, and to two additional
consecutive sentences of 1 day to 5 years’ incarceration for his
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Corruption of Minors convictions. Thus, Appellant's aggregate
sentence was 10 years’ and 2 days’ to 30 years’ incarceration.
The court also determined that Appellant is a Sexually Violent
Predator. Additionally, Appellant's conviction for aggravated
indecent assault classified him as a Tier III sexual offender, and
required him to comply with the lifetime registration and reporting
requirements of the Sexual Offender Registration and Notification
Act (“SORNA”). See 42 Pa.C.S. §§ 9799.14d) and 9799.15(a)(3).
Appellant did not file a post-sentence motion or a direct appeal
from his judgment of sentence. His sentence, thus, became final
30 days later, on February 3, 2014.
On July 20, 2016, Appellant filed a pro se PCRA petition in which
he claimed that his plea counsel, John Ingros, Esquire, had
rendered ineffective assistance and that he is serving an illegal
mandatory minimum sentence pursuant to Commonwealth v.
Wolfe, 140 A.3d 651 (Pa. 2016).
The PCRA court appointed counsel who, on July 29, 2016, filed a
petition to withdraw as counsel as well as a [] “no-merit” letter
[pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc)]. On August 1, 2016, the PCRA court advised
Appellant of its intent to dismiss his petition without a hearing
pursuant to Pa.R.Crim.P. 907.
That same day, the court permitted counsel to withdraw, and on
August 25, 2016, it dismissed Appellant's PCRA petition as
untimely. Appellant timely appealed, but on January 30, 2017,
this Court dismissed Appellant's appeal for failure to file a brief.
See Commonwealth v. Sprankle, No. 1505 WDA 2016 (Pa.
Super. 2017).
On June 2, 2017, Appellant filed with the PCRA court a “Letter in
Application for ‘Application to Reinstate Appeal.’” In this “letter,”
Appellant requested that the PCRA court reinstate his appeal
rights nunc pro tunc. The PCRA court denied this request on June
8, 2017.
On September 22, 2017, Appellant filed a pro se [third] PCRA
petition. In this petition, Appellant reiterated his claim that he is
serving an illegal mandatory minimum sentence pursuant to
Wolfe, and asserted that the requirement that he register as a
sex offender for his lifetime is unconstitutional pursuant to
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017). In an
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effort to overcome the PCRA's jurisdictional time-bar, Appellant
averred that his petition was timely pursuant to 42 Pa.C.S.A.
§ 9545(b)(1)(iii) (“[T]he 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.”).
On October 12, 2017, the PCRA court advised Appellant of its
intent to dismiss his petition without a hearing pursuant to
Pa.R.Crim.P. 907. On November 6, 2017, Appellant filed a
response to the court's Rule 907 notice, baldly restating his claim
that he is entitled to relief pursuant to Wolfe and Muniz.
On November 16, 2017, the PCRA court dismissed Appellant's
petition as untimely and meritless [and Appellant lodged an
appeal].
[fn] 18 Pa.C.S.A. §§ 3125(a)(7) and 6301(a)(1)(ii), respectively.
Appellant's sentencing order, however, incorrectly identified the
subsection and grading of Appellant's aggravated indecent assault
conviction as 18 Pa.C.S.A. § 3125(b), a first-degree felony.
Recognizing this error, on October 28, 2016, the trial court
entered an order correcting Appellant's sentences to reflect that
he had pleaded guilty to aggravated indecent assault, 18
Pa.C.S.A. § 3125(a)(7), a second-degree felony.
Commonwealth v. Sprankle, 209 A.3d 538 (Pa. Super. 2019) (unpublished
memorandum) (unnecessary capitalization and some footnotes omitted) at
*1-3. Finding we lacked jurisdiction to entertain Appellant’s claims, we
affirmed the dismissal of Appellant’s third PCRA petition as untimely in an
unpublished memorandum decision filed on January 29, 2019. See id. Our
Supreme Court denied further review on September 16, 2019.
On September 19, 2022, Appellant filed his fourth PCRA petition pro se
which is currently at issue. In his latest petition, Appellant sought to have his
“PCRA rights restored nunc pro tunc” from the denial of his first PCRA petition.
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See Pro Se PCRA Petition, 9/19/2022, at 4-E. Again, relying upon
Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016),1 and as previously
argued, Appellant maintains that he is serving an illegal sentence. Id. at 8-E.
Appellant avers that, in requesting to withdraw from representing Appellant
on his first PCRA petition, appointed counsel relied upon “the availability of
information in the public record.” Id. at 4-E. Appellant contends in the instant
PCRA petition that the Pennsylvania Supreme Court subsequently decided
Commonwealth v. Small, 238 A.3d 1267 (Pa. 2020) which “disavows the
public record presumption.” Id. “Based on the ruling in Small, [Appellant
averred that he filed the instant] PCRA petition, under the newly discovered
evidence exception to the PCRA’s one-year timing requirement [pursuant to]
42 Pa.C.S.A. § 9545(b)(1)(ii)[.]” Id. at 4-D. Appellant claims that despite
limited access to the prison library, he uncovered Wolfe, which was decided
on June 20, 2016, and “filed his [first] PCRA petition within the sixty[-]day
time limit for newly discovered evidence” an exception to the one-year
jurisdictional time-bar to file PCRA petitions “required by [42 Pa.C.S.A.] §
9545(b)(1)(ii).” Id. at 8-C. As such, Appellant “request[ed] that his PCRA
rights be reinstated nunc pro tunc, that he be given adequate opportunity to
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1 Wolfe held that 42 Pa.C.S.A. § 9718, which imposed a mandatory, 10-year
minimum sentence for involuntary deviate sexual intercourse (IDSI) and
specifically stated that its provisions were not an element of the crime and
that factual matters were to be resolved by the sentencing court by a
preponderance of the evidence, violated the Sixth Amendment's requirement
that any fact that increased the penalty for a crime must be treated as an
element of the offense, submitted to the jury rather than the judge, and found
beyond a reasonable doubt.
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file a new PCRA [petition] with the PCRA court addressing his illegal sentence
and related matters[.]” Id. at 8-G.
On September 21, 2022, the PCRA court entered notice of its intent to
dismiss the PCRA petition without an evidentiary hearing pursuant to
Pa.R.Crim.P. 907. In that notice, the PCRA court explained:
Commonwealth v. Small, 283 A.3d 1267 (Pa. 2020) did
eliminate the presumption that PCRA petitioners had access to
public records and were deemed to have access to the facts
contained therein. Id. at 1285-1286. Small, however, is not a
newly discovered fact upon which [Appellant] may rely for
purposes of 42 Pa.C.S.A. § 9545(b)(1)(ii), because “judicial
decisions do not constitute new ‘facts’ for purposes of the
newly-discovered evidence exception.” Commonwealth v.
Kretchmar, 189 A.3d 459, 467 (Pa. Super. 2018).
More than that, Small is not even the “fact” upon which
[Appellant] seeks to build his case. Rather, his goal is to employ
Small as the jurisdiction-giving device that would allow him to
relitigate the question he raised more than 6 years ago in his first
PCRA petition, namely, whether his sentence was illegal pursuant
to Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016). Even
[if] Small [constituted] a new “fact,” though, that is no[t] how
the exception works; it does not authorize a petitioner to advance
one fact he recently learned as a means to advance additional
facts he has known for years. Either way, then, Small does not
alter the conclusion that [Appellant’s] latest PCRA petition is
untimely and, as such, beyond the [c]ourt’s jurisdiction.
Notice of Intent to Dismiss, 9/21/2022, at *1. Appellant filed a written
response to the notice of intent to dismiss on October 20, 2022. On October
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26, 2022, the PCRA court entered an order dismissing Appellant’s fourth PCRA
petition. This timely pro se appeal resulted.2
Appellant presents the following issues, pro se, for our review:
I. Did the lower court err by [imposing] a mandatory minimum
unconstitutional sentence?
II. Did the lower court err by not reinstating the first PCRA
[petition] dismissed in 2016 for lack of due diligence that
has been overruled by Commonwealth v. Small?
III. Are the aspects and stipulations [imposed] on Appellant
implemented by the SORNA registration in part[,] if not in
whole[,] unconstitutional?
Appellant’s Pro Se Brief at 9 (complete capitalization omitted).
Before addressing the merits of Appellant’s current claims, we must first
determine if we have jurisdiction. It is well-established that “the PCRA's
timeliness requirements are jurisdictional in nature and must be strictly
construed; courts may not address the merits of the issues raised in a petition
if it is not timely filed.” Commonwealth v. Walters, 135 A.3d 589, 591 (Pa.
Super. 2016) (citations omitted). Moreover, “a legality of sentencing issue
must be raised in a timely filed PCRA [p]etition over which we have
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2 Appellant filed a pro se notice of appeal on November 17, 2022. On
November 21, 2022, the PCRA court entered an order directing Appellant to
file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Appellant complied timely, raising three issues. Appellant
alleged his 2014 sentence and SORNA registration requirements were
unconstitutional and generally challenged the dismissal of his first PCRA
petition. On January 12, 2023, the PCRA court issued an opinion pursuant to
Pa.R.A.P. 1925(a) noting that Appellant’s Rule 1925(b) essentially raised new
issues. Accordingly, the PCRA court relied upon its rationale as set forth in
the PCRA court’s notice of intent to dismiss filed on September 21, 2022.
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jurisdiction.” Commonwealth v. Olson, 179 A.3d 1134, 1137 (Pa. Super.
2018), citing 42 Pa.C.S.A. § 9545(b); see also Commonwealth v. Fahy,
737 A.2d 214, 223 (Pa. 1999) (stating that “[a]lthough 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 exceptions thereto”)). Generally, a PCRA
petition “including a second or subsequent petition, shall be filed within one
year of the date the judgment of sentence becomes final.” 42 Pa.C.S.A.
§ 9545(b)(1). However, Pennsylvania courts may consider an untimely PCRA
petition if the petitioner explicitly pleads and proves one of the three
exceptions enumerated in Section 9545(b)(1), which include: (i) the inability
to raise a claim as a result of governmental interference; (ii) the discovery of
previously unknown facts or evidence that would have supported a claim; or
(iii) a newly-recognized constitutional right that has been held to apply
retroactively by the Supreme Court of the United States or the Supreme Court
of Pennsylvania. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
Here, as set forth in detail above, Appellant’s judgment of sentence
became final on February 3, 2014. Therefore, Appellant had until February 3,
2015 to file a timely PCRA petition. As such, Appellant’s most recent PCRA
petition filed on September 19, 2022 was patently untimely. In order to
invoke the exception at Section 9545(b)(1)(ii), Appellant claims the decisions
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in Small and Wolfe were facts that were previously unknown to him.3 Our
Supreme Court recently reiterated the well-established principle that a judicial
decision does not constitute a “fact” for purposes of the newly-discovered facts
exception. Commonwealth v. Reid, 235 A.3d 1124, 1147 (Pa. 2020); see
also Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (“[t]he
PCRA confers no authority upon this Court to fashion ad hoc equitable
exceptions to the PCRA time-bar in addition to those exceptions expressly
delineated in the Act[ ]”) (citation omitted). Accordingly, we conclude that
the PCRA court properly dismissed Appellant’s September 19, 2022 petition
as untimely and not subject to any statutory exception to the PCRA’s
jurisdictional time bar. Because we lack jurisdiction to reach the merits of
Appellant’s current claims for collateral relief, we may not address Appellant’s
appellate issues. Accordingly, we affirm the order entered by the PCRA court
on October 26, 2022.
Order affirmed.
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3 We further note that Small and Wolfe did not announce newly-recognized,
retroactive constitutional rights. See Commonwealth v. Charles, 2018 WL
6803235, at *2 (Pa. Super. 2018) (“the Wolfe decision neither constitutes a
newly recognized constitutional right under the PCRA nor extended the
retroactive application of Alleyne v. United States, 133 S. Ct. 2151
(2013)”); see also Small supra (overruling prior precedents which had
interpreted statutory provisions to hold that prisoners are subject to the public
record presumption when pleading the unknown facts exception to PCRA
jurisdiction).
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FILED: 10/10/2023
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Com. v. Sprankle, D.
Combined Opinion