Com. v. Thompson, J. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JAMES LEE THOMPSON
Appellant No. 1870 WDA 2019
Appeal from the PCRA Order entered November 15, 2019
In the Court of Common Pleas of Cambria County
Criminal Division at No: CP-11-CR-0002174-2004
BEFORE: SHOGAN, J., STABILE, J., and KING, J.
MEMORANDUM BY STABILE, J.: FILED DECEMBER 21, 2020
Appellant, James Lee Thompson, appeals pro se from the order entered
November 15, 2019 in the Court of Common Pleas of Cambria County,
dismissing his (second) petition for relief pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.1 Upon review, we affirm.
On May 19, 2005, a jury convicted Appellant of first degree murder in
connection with the shooting death of a Johnstown man on the night of June
27 and June 28, 2004. Appellant was sentenced to life imprisonment without
parole on July 12, 2005. On January 12, 2007, our Court affirmed the
judgment of sentence. No further appeal was taken. See Commonwealth
v. Thompson, No. 2227 WDA 2005, unpublished memorandum (Pa. Super.
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1 The instant petition was filed on October 21, 2019.
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January 12, 2007) (direct appeal); Commonwealth v. Thompson, No. 1493
WDA 2008), unpublished memorandum (Pa. Super. February 19, 2010) (first
PCRA petition).
On appeal Appellant argues that under Commonwealth v. Ford, 217
A.3d 824 (Pa. 2019),2 the sentencing court, at the time of sentencing, should
have determined Appellant’s ability to pay a non-mandatory fine before
imposing such a fine as part of Appellant’s sentence. Having failed to do so,
Appellant argues his sentence is illegal.
“[A]n 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).
All PCRA petitions, “including a second or subsequent petition, shall be filed
within one year of the date the judgment becomes final” unless an exception
to timeliness 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.
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2 In Ford, our Supreme Court held that “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.
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2006) (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. Commonwealth v.
Stokes, 959 A.2d 306, 310 (Pa. 2008). 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. 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).
Based on the foregoing, before we may address the merits of this
appeal, we must determine whether the PCRA court had jurisdiction to
entertain the underlying PCRA petition. The PCRA contains the following
restrictions governing the timeliness of any PCRA petition.
(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
(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.
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(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). As noted above, Section 9545’s timeliness provisions
are jurisdictional. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014).
Additionally, we have emphasized repeatedly that “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).
Here, the record reflects Appellant’s judgment of sentence became final
at the expiration of the 30-day period to appeal to the Supreme Court of
Pennsylvania. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a). Because
Appellant had one year from February 12, 2007 to file his PCRA petition, the
current filing, which was filed on October 21, 2019, is facially untimely.
The one-year time limitation, however, can be overcome if a petitioner
alleges and proves one of the three exceptions set forth in Section
9545(b)(1)(i)-(iii) of the PCRA.
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Appellant argues that our Supreme Court’s decision in Ford constitutes
a newly discovered fact for purposes of Section 9545(b)(1)(ii).3 In reaching
said conclusion, Appellant argues that the PCRA court’s reliance on
Commonwealth v. Watts, 23 A.3d 980 (Pa. 2011),4 for the proposition that
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3 The newly-discovered fact exception requires a petitioner to plead and prove
two components: 1) the facts upon which the claim was predicated were
unknown, and (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).
4 In Watts,
Watts’s direct appeal was dismissed in 2002 because counsel
failed to file a docketing statement. Within 60 days of learning of
the dismissal in August 2003, Watts filed a PCRA petition seeking
reinstatement of his direct appeal rights nunc pro tunc. [Watts,
23 A.3d at 981]. The PCRA court dismissed the petition as
untimely, and this Court affirmed in August 2005, noting that
Watts did not exercise due diligence in determining the status of
his appeal. Id. at 982. Watts did not seek review of our decision
by our Supreme Court. In 2007, Watts filed a second PCRA
petition, again alleging attorney abandonment, but claiming that
his petition met the timeliness exception of section 9545(b)(1)(ii)
because it was filed within 60 days of [Commonwealth v.
Bennett, 930 A.2d 1264 (Pa. 2007) (in Bennett, our Supreme
Court found that attorney abandonment may constitute a factual
basis for the section 9545(b)(1)(ii) timeliness exception)].
[Watts, 23 A.3d at 982]. The PCRA court dismissed the petition
as untimely, this Court reversed, and our Supreme Court reversed
us, holding that the PCRA court properly dismissed Watts’ second
PCRA petition. The Court held that the Bennett decision was not
a fact upon which Watts could rely in meeting the timeliness
exception of section 9545(b)(1)(ii). Id. at 986. The factual
predicate of Watts’ claim was his counsel’s abandonment, which
Watts discovered in 2003, within the one-year PCRA deadline. As
such, the abandonment could not serve to satisfy section
9545(b)(1)(ii) for a petition filed in 2007. Id.
Commonwealth v. Huddleston, 55 A.3d 1217, 1221 (Pa. Super. 2012).
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subsequent decisional law does not amount to a new “fact” under Section
9545(b)(1)(ii), was misplaced as Watts was incorrectly decided by the
Supreme Court.
Appellant engages in a lengthy dissertation on the operation of several
federal and state decisions dealing with what constitutes a “new rule” and
under what circumstances a new rule is applicable to cases on collateral
review. Appellant’s dissertation might have had some relevancy in the context
of a Section 9545(b)(1)(iii) analysis. However, Appellant is not arguing that
he met Section 9545(b)(1)(iii). Appellant specifically, repeatedly, and solely
argues that he met Section 9545(b)(1)(ii). Appellant fails, however, to
address whether Ford constitute a “newly discovered fact” for purposes of
Section 9545(b)(1)(ii), except for criticizing Watts as incorrectly decided.
Watts, however, despite Appellant’s criticism, controls the issue raised
by Appellant, i.e., whether a judicial opinion constitutes a fact for purposes of
Section 9545(b)(1)(ii). In Watts, the Supreme Court explained the distinction
between law and fact as follows:
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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Watts, 23 A.3d at 986-87.
Applying the foregoing analysis to the matter at hand, we conclude that
Ford is not a “fact” for purposes of Section 9545(b)(1)(ii). The event that
prompted Ford, i.e., failure to hold a hearing, is the fact relevant for purposes
of Section 9545(b)(1)(ii). Appellant, however, was fully aware of that fact
since the day of sentencing (July 12, 2005), yet he failed to act upon it.
Accordingly, because Ford does not constitute a “newly discovered fact”
for purposes of Section 9545(b)(ii), we agree with the PCRA court that the
instant PCRA is untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2020
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