Com. v. Brewer, D. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DONTAY RAYSHAW BREWER :
:
Appellant : No. 158 EDA 2021
Appeal from the PCRA Order Entered December 11, 2020
In the Court of Common Pleas of Montgomery County
Criminal Division at CP-46-CR-0009340-2009
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: FILED JANUARY 4, 2022
Dontay Rayshaw Brewer (Appellant) appeals pro se from the order
dismissing as untimely his third petition filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
Appellant was the head of a cocaine trafficking operation. On January
27, 2011, a jury convicted him of numerous crimes related to his enterprise:
corrupt organizations; conspiracy to commit corrupt organizations; delivery of
a controlled substance (6 counts); possession of a controlled substance (4
counts); conspiracy to violate the Controlled Substance, Drug, Device, and
Cosmetic Act; criminal use of a communications facility (5 counts); and
possession of drug paraphernalia. On March 7, 2011, with regard to five of
the counts, the Commonwealth filed a Notice of Intent to Seek Mandatory
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* Former Justice specially assigned to the Superior Court.
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Sentence pursuant to 18 Pa.C.S.A. § 7508. On March 28, 2011, the trial court
sentenced Appellant to an aggregate 21 – 60 years in prison, plus $210,000
in mandatory fines. This Court affirmed Appellant’s judgment of sentence and
the Pennsylvania Supreme Court denied allowance of appeal.
Commonwealth v. Brewer, 50 A.3d 250 (Pa. Super. 2012) (Table)
(unpublished memorandum), appeal denied, 62 A.3d 377 (Pa. 2013)
(Table).
On December 3, 2013, Appellant pro se filed a timely PCRA petition
claiming that his trial counsel was ineffective for failing to file a suppression
motion. Counsel was appointed and filed an amended petition. The PCRA
court denied relief and Appellant appealed. On appeal, Appellant additionally
argued that his five mandatory minimum sentences were unconstitutional
under Alleyne v. United States, 133 S.Ct. 2151 (2013).1 Appellant had not
previously raised this claim in his pro se or amended petition.
Upon review, we concluded that counsel was not ineffective and
Appellant’s sentencing claim based on Alleyne was not waived. However, we
found Appellant failed to timely raise the Alleyne claim because he raised it
more than a year after his judgment of sentence became final. See 42
Pa.C.S.A. § 9545. Therefore, we affirmed the PCRA court’s denial of relief.
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1In Commonwealth v. Mosley, 114 A.3d 1072 (Pa. Super. 2015), this Court
ruled Section 7508 was unconstitutional under Alleyne. See also
Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015) (invalidating a
procedurally identical mandatory minimum statute pursuant to Alleyne).
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On September 14, 2015, Appellant filed a second, counseled PCRA
petition, again arguing that his sentence was unconstitutional and should be
vacated under Alleyne and its progeny; Appellant also raised a new
ineffectiveness of trial counsel claim. The PCRA court dismissed the petition
as untimely. We affirmed, and the Pennsylvania Supreme Court denied
review. Commonwealth v. Brewer, 153 A.3d 1113 (Pa. Super. 2016)
(Table), appeal denied, 162 A.3d 1114 (Table).
On September 14, 2020, Appellant pro se filed the underlying PCRA
petition, his third. Appellant claims that Alleyne converted his mandatory
fines into non-mandatory fines, such that he is now eligible for relief under
Commonwealth v. Ford, 217 A.3d 824 (Pa. 2019).2
On November 2, 2020, the PCRA court issued notice of intent to dismiss
the petition without a hearing, explaining:
… [Appellant] has failed to invoke the timeliness exception at
Section 9545(b)(1)(ii) relying on [Ford] (holding that “trial courts
are without authority to impose non-mandatory fines absent
record evidence that the defendant is or will be able to pay
them.”), because “subsequent decisional law does not amount to
a new ‘fact’ under section 9545(b)(1)(ii) of the PCRA.”
Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011).
Additionally, [Appellant] cannot rely on Ford, supra to invoke the
timeliness exception at Section 9545(b)(1)(iii), because it does
not satisfy the new retroactive constitutional right exception to
the PCRA’s one-year time bar. Finally, Ford, supra is inapplicable
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2 The Pennsylvania Supreme Court held “the plain language of [Section
9726(c) of the Sentencing Code] is clear: trial courts are without authority to
impose non-mandatory fines absent record evidence that the defendant is
or will be able to pay them.” Ford, 217 A.3d at 829 (emphasis added).
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to [Appellant] because he was sentenced to pay mandatory
fines.
Pa.R.Crim.P. 907 Notice, 11/2/20 (emphasis in original).3
On December 11, 2020, the PCRA court dismissed Appellant’s petition
without a hearing. Appellant timely appealed. Both the PCRA court and
Appellant have complied with Pa.R.A.P. 1925.
Appellant presents three related issues for review:
1. Did the PCRA Court err when it denied jurisdiction under 42
Pa.C.S. § 9545(b)(1)(ii) to entertain [Appellant’s] Ford claim?
2. Did the PCRA Court err when it denied jurisdiction under 42
Pa.C.S. § 9545(b)(1)(iii) to entertain [Appellant’s] Ford claim?
3. Does the categorical rule announced in Commonwealth v.
Watts, 23 A.3d 980, 987, 988-89 (Pa. 2011), prohibiting a
judicial decision from ever be [sic] considered as a new fact
under 9545(b)(1)(ii), conflict with the PA Supreme Court[’]s
initial clarification of a statute decision explained in Fiore, and
its progeny?
Appellant’s Brief at 4 (footnotes omitted).
It is well-settled that an appellate court “reviews the PCRA court’s
findings of fact to determine whether they are supported by the record, and
reviews its conclusions of law to determine whether they are free from legal
error.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation
omitted).
Here, we must first determine whether Appellant’s petition is timely.
Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008). All PCRA
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3 Appellant filed an untimely response to the Rule 907 notice.
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petitions, “including a second or subsequent petition, shall be filed within one
year of the date the judgment becomes final” unless an exception to the time-
bar applies. 42 Pa.C.S.A. § 9545(b)(1). “The PCRA’s time restrictions are
jurisdictional in nature. Thus, if 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) (citations
omitted). Timeliness requirements of the PCRA must be met even if the
underlying claim is a challenge to the legality of the sentence. See
Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (“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 exceptions thereto”) (citation
omitted).
A petitioner may overcome the time-bar if he alleges and proves one of
the three statutory exceptions. Commonwealth v. Spotz, 171 A.3d 675,
678 (Pa. 2017). The statute provides:
(b) Time for filing petition.—
(1) Any petition under this subchapter, 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 that:
...
(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
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(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.
(2) Any petition invoking an exception provided in paragraph (1)
shall be filed within one year of the date the claim could have been
presented.
(3) For purposes of this subchapter, a judgment becomes 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). The 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.” Commonwealth v. Robinson,
837 A.2d 1157, 1161 (Pa. 2003) (citations omitted).
Appellant’s judgment of sentence became final on April 10, 2013, at the
expiration of the 90-day period to appeal to the United States Supreme Court.
See 42 Pa.C.S.A. § 9545(b)(3); Sup.Ct.R. 13. Because Appellant had one
year from April 10, 2013 to file his PCRA petition, the current petition, which
Appellant filed on September 14, 2020, is facially untimely.
Appellant argues that the Pennsylvania Supreme Court’s decision in
Commonwealth v. Ford, 217 A.3d 824 (Pa. 2019), meets the newly
discovered fact exception of Section 9545(b)(1)(ii).4 In his words, Appellant:
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4 The newly-discovered fact exception requires a petitioner to plead and
prove: (1) the facts upon which the claim was predicated were unknown, and
(Footnote Continued Next Page)
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submits the Ford Court’s statutory interpretation of Section
9726(c) to “require[] record evidence of a defendant’s ability to
pay a fine” and conclusion when “no such evidence exists in the
record . . . the trial court imposed an illegal sentence,” Ford at
831, applies retroactively back to the date of his sentencing, as a
result of § 7508 being “rendered void on its face.”
Appellant’s Brief at 12-13 (emphasis in original). We are not persuaded.
The PCRA court correctly concluded that Appellant’s claim alleging the
newly-discovered fact of the Ford decision is without merit. The court found
that pursuant to “the pronouncement of our Supreme Court in
Commonwealth v. Watts, 23 A.3d 980 (Pa. 2011), a judicial opinion does
not qualify as a previously unknown ‘fact’ capable of triggering the timeliness
exception codified in the PCRA.” PCRA Court Opinion, 2/12/21, at 4. The
PCRA court quoted the following excerpt from Watts:
Black’s Law Dictionary explains the distinction thusly: ‘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.
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(2) these unknown facts could not have been ascertained by the exercise of
due diligence. See Commonwealth v. Burton, 158 A.3d 618, 638 (Pa.
2017).
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Id. at 5 (citing Watts, 23 A.3d at 986-87). The court added, “Most recently,
our Supreme Court reaffirmed that ‘a judicial opinion - even one which may
establish a new theory or method of obtaining relief - does not amount to a
new ‘fact’ under Section 9545(b)(l)(ii) of the PCRA.’” Commonwealth v.
Reid, 235 A.3d 1124, 1148 (Pa. 2020).
Next, Appellant argues he has satisfied the newly recognized
constitutional right exception to the PCRA time-bar set forth at 42 Pa.C.S.A.
§ 9545(b)(1)(iii). Appellant claims the doctrine of stare decisis “demands that
the result in Ford be retroactively applied here.” Appellant’s Brief at 17.
Appellant suggests the rationale of Ford – regarding the “right to be free from
excessive fines” – should be extended to mandatory fines. Id. at 19
(emphasis in original).
This Court explained the scope of the constitutional right exception in
Commonwealth v. Chambers, 35 A.3d 34 (Pa. Super. 2011). We stated:
For purposes of deciding whether the timeliness exception to the
PCRA based on the creation of a new constitutional right is
applicable, the distinction between the holding of a case and
its rationale is crucial since only a precise creation of a
constitutional right can afford a petitioner relief.... [T]he
rationale used by the Supreme Court is irrelevant to the
evaluation of a § 9545(b)(1)(iii) timeliness exception to
the PCRA, as the right must be one that has been expressly
recognized by either the Pennsylvania or United States
Supreme Court. Thus, for the purpose of the timeliness
exception to the PCRA, only the holding of the case is relevant.
Id. at 40-43 (emphasis added).
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Like the appellant in Chambers, Appellant is not basing his argument
on a newly-recognized constitutional right as contemplated by the PCRA.
Rather, he bases his argument on Ford’s rationale that a trial court may only
impose fines based on a defendant’s ability to pay. Ford, 217 A.3d at 831.
Thus, Appellant’s reliance on the stare decisis doctrine misplaced. “While
rationales that support holdings are used by courts to recognize new rights,
this judicial tool is not available to PCRA petitioners.” Chambers, supra at
42. Furthermore, the holding in Ford is limited to non-mandatory fines (as
opposed to the mandatory fines imposed on Appellant).
In sum, Appellant may not invoke the Ford decision to meet the newly
discovered fact or constitutional right exception to the PCRA time-bar.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/4/2022
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