Com. v. Napper, K.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KYLAND WILLIAM NAPPER
Appellant No. 724 WDA 2016
Appeal from the PCRA Order April 19, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0010388-2012
CP-02-CR-0016131-2013
BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY MOULTON, J.: FILED AUGUST 22, 2017
Kyland William Napper appeals from the April 19, 2016 order of the
Allegheny County Court of Common Pleas dismissing as untimely his petition
filed under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-46. Because
we conclude that the PCRA court erred in dismissing Napper’s petition as
untimely, we reverse and remand.
On June 30, 2014, Napper entered negotiated guilty pleas in five
separate cases, two of which are the subject of this appeal. In case number
CP-02-CR-0010388-2012, Napper pled guilty to two counts of possession of
a controlled substance with intent to deliver (“PWID”), two counts of
possession of a controlled substance, one count of possession of drug
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*
Retired Senior Judge assigned to the Superior Court.
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paraphernalia, one count of receiving stolen property, and one count of
criminal conspiracy.1 In case number CP-02-CR-0016131-2013, Napper pled
guilty to two counts of delivery of a controlled substance and two counts of
PWID.2
At sentencing, the parties and the trial court discussed on the record
Napper’s eligibility for a recidivism risk reduction incentive (“RRRI”)
sentence. At the time, Napper was awaiting trial in Westmoreland County
on drug-related offenses, including one count of drug delivery resulting in
death, 18 Pa.C.S. § 2506(a). The Commonwealth argued that because
Napper was awaiting prosecution in the Westmoreland County case, he was
ineligible for RRRI under 61 Pa.C.S. § 4503.3 The trial court agreed and
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1
35 P.S. §§ 780-113(a)(30), 780-113(a)(16), and 780-113(a)(32), 18
Pa.C.S. §§ 3925(a) and 903(a)(1), respectively.
2
35 P.S. §§ 780-113(a)(16) and 780-113(a)(30), respectively.
3
Section 4503 of the Prisons and Parole Code defines “[e]ligible
offender” for purposes of RRRI, in relevant part, as follows:
A defendant or inmate convicted of a criminal offense who
will be committed to the custody of the [D]epartment [of
Corrections] and who . . . [i]s not awaiting trial or
sentencing for additional criminal charges, if a
conviction or sentence on the additional charges would
cause the defendant to become ineligible under this
definition.
61 Pa.C.S. § 4503 (emphasis added). At sentencing, the Commonwealth
stated that if Napper were convicted of drug delivery resulting in death in
Westmoreland County, that conviction would render him ineligible for RRRI.
N.T., 6/30/14, at 27.
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determined that Napper was ineligible for RRRI. The following exchange
then occurred:
[DEFENSE COUNSEL]: Your Honor, just so that I am clear,
you may or may not know the answer to this, if he’s
deemed ineligible at this point, if his other case is resolved
in a manner where that charge no longer exists, does it
then come back before Your Honor for purposes of
determining his eligibility at that point?
THE COURT: It’s my understanding, although I don’t want
to make any promises, it’s my understanding that should
the –
...
THE COURT: – should the case that we’re discussing
involving the drug overdose death be resolved in a way
that would make him – that would not exclude him from
RRRI eligibility, I would then either by the State Parole
Board be notified by letter of his – of their understanding
of his eligibility or counsel, any of the three of you could
raise that issue before me and then I would –
[DEFENSE COUNSEL]: We haven’t lost that, considering
that’s going to be farther out obviously from ten days of
today’s date.
THE COURT: Correct. That is – correcting sentences is
always – it’s not subject to the ten-day rule.
[DEFENSE COUNSEL]: Okay, thank you.
THE COURT: Correcting a sentence is always something I
can do on a motion of counsel. So to the extent that
[Napper] later becomes RRRI eligible, I would reconsider
that and impose the RRRI minimum. Today, I do not
believe he is, and I will not sentence him to a[n] RRRI
minimum.
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N.T., 6/30/14, at 29-30. At the conclusion of the hearing, the trial court
sentenced Napper to an aggregate term of 5 to 10 years’ incarceration in
case numbers CP-02-CR-0010388-2012 and CP-02-CR-0016131-2013.
On September 17, 2015, a jury acquitted Napper of all charges in the
Westmoreland County case. On November 13, 2015, Napper filed a motion
to correct sentence in case numbers CP-02-CR-0010388-2012 and CP-02-
CR-0016131-2013, asking the trial court to amend Napper’s sentence to
include the RRRI minimum due to his acquittal in the Westmoreland County
case. The trial court denied the motion on November 30, 2015, concluding
that it lacked jurisdiction to modify Napper’s sentence.
On December 11, 2015, Napper filed a motion for reconsideration,
asking the trial court to treat his prior motion as a first PCRA petition and to
amend his sentence to include the RRRI minimum. On December 17, 2015,
the PCRA court granted reconsideration, converted Napper’s motion into a
PCRA petition, and ordered the Commonwealth to file a response. On March
16, 2016, after receiving the Commonwealth’s response, the PCRA court
issued notice of its intent to dismiss the PCRA petition as untimely. On April
19, 2016, the PCRA court entered an order dismissing Napper’s PCRA
petition.
On appeal, Napper raises the following issues:
I. Was Mr. Napper’s PCRA petition timely filed since he
pleaded and proved an exception to the PCRA?
II. Is Mr. Napper currently serving an illegal sentence
since he is eligible for RRRI sentencing?
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Napper’s Br. at 4 (full capitalization omitted).
Our review of an order denying PCRA relief is limited to determining
“whether the decision of the PCRA court is supported by the evidence of
record and is free of legal error.” Commonwealth v. Melendez-Negron,
123 A.3d 1087, 1090 (Pa.Super. 2015). We will not disturb the PCRA court’s
factual findings “unless there is no support for [those] findings in the
certified record.” Id.
We must first address the timeliness of Napper’s PCRA petition, which
is a jurisdictional requisite. See Commonwealth v. Brown, 111 A.3d 171,
175 (Pa.Super.), app. denied, 125 A.3d 1197 (Pa. 2015). In the absence of
an applicable exception, a petitioner must file a PCRA petition, including a
second or subsequent petition, within one year of the date his or her
judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). Here,
Napper did not file a direct appeal from his judgment of sentence, so his
judgment of sentence became final 30 days later, on July 30, 2014. See 42
Pa.C.S. § 9545(b)(3). He had one year from that date, or until July 30,
2015, to file a timely PCRA petition. Thus, the instant PCRA petition, filed on
November 13, 2015, was facially untimely.
To overcome the time bar, Napper was required to plead and prove
one of the following exceptions: (i) unconstitutional interference by
government officials; (ii) newly discovered facts that could not have been
previously ascertained with due diligence; or (iii) a newly recognized
constitutional right that has been held to apply retroactively. See 42
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Pa.C.S. § 9545(b)(1)(i)-(iii). To invoke one of these exceptions, Napper
must have filed his petition within 60 days of the date the claim could have
been presented. See 42 Pa.C.S. § 9545(b)(2).
In his PCRA petition, Napper asserted the new-facts exception to the
one-year time bar. Specifically, Napper averred:
24. The “new fact” alleged by Mr. Napper is that, [in the
Westmoreland County case], the jury found him not guilty
of Drug Delivery Resulting in Death, the charge that
initially made him ineligible to receive a[n] RRRI minimum
sentence.
25. This fact was unknown to [Napper] until September
17, 2015, when the jury rendered its verdict.
26. Mr. Napper diligently filed the instant PCRA petition on
November 13, 2015, which was within 60 days of the date
the claim could have been presented.
Mot. to Reconsider, 12/11/15, ¶¶ 24-26. The PCRA court, however, rejected
this claim. The PCRA court determined that Napper’s acquittal in the
Westmoreland County case was not a new fact under section 9545(b)(1)(ii)
of the PCRA. Citing Commonwealth v. Watts, 23 A.3d 980 (Pa. 2011), the
PCRA court concluded that Napper’s acquittal was subsequent decisional law
and, thus, “not a fact for PCRA purposes.” Opinion, 11/21/16, at 4
(“1925(a) Op.”). We disagree.
The Pennsylvania Supreme Court has explained the difference between
“law” and “fact” for purposes of section 9545(b)(1)(ii) of the PCRA 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
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according to or in contravention of the rule.” Black’s Law
Dictionary 592 (6th ed. 1991). 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.” Id.
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, 23 A.3d at 986-87. The Supreme Court ultimately held “that
subsequent decisional law does not amount to a new ‘fact’ under section
9545(b)(1)(ii) of the PCRA.” Id. at 987.
We agree with Napper that his acquittal in the Westmoreland County
case was not subsequent decisional law but a new fact under section
9545(b)(1)(ii). Under Watts, the acquittal was neither a “principle” nor a
“rule of duty”; rather, it was an “event” previously unknown to Napper that
could not have been ascertained earlier by the exercise of due diligence.
See Commonwealth v. Bennett, 930 A.2d 1264, 1270 (Pa. 2007) (stating
that section 9545(b)(1)(ii) “simply requires [the] petitioner to allege and
prove that there were ‘facts’ that were ‘unknown’ to him and that he
exercised ‘due diligence’”) (quoting 42 Pa.C.S. § 9545(b)(1)(ii)). Moreover,
the acquittal itself is the basis of Napper’s claim for PCRA relief. His petition
was not predicated on a change in decisional law or a legal principle, but on
the fact of his acquittal. As the Watts Court stated, “[t]he events that
prompted the [legal] analysis, which must be established by presumption or
evidence, are regarded as fact.” 23 A.3d at 987; see also Commonwealth
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v. Crews, 863 A.2d 498, 502 (Pa. 2004) (“[T]he ‘facts’ of which the
exception speaks are those on which the PCRA claims are based.”).
Having determined that Napper’s acquittal in the Westmoreland
County case constitutes a new fact under section 9545(b)(1)(ii), we must
determine whether Napper filed his PCRA petition with 60 days of the date
the claim could have been raised under section 9545(b)(2). Napper was
acquitted in Westmoreland County on September 17, 2015, and he filed his
PCRA petition 57 days later, on November 13, 2015. Therefore, Napper’s
petition was timely filed.
Next, we turn to the merits of Napper’s PCRA petition. Napper asserts
that the only reason he was deemed ineligible for an RRRI sentence was that
he was awaiting prosecution on the charge of drug delivery resulting in
death in Westmoreland County. Because he was acquitted of that charge,
Napper asserts that he is now eligible for an RRRI sentence, as the trial
court indicated at the time of his initial sentencing. Napper averred:
7. At the time of sentencing on June 30, 2014, discussion
was placed on the record as to [Napper’s] eligibility for a[n
RRRI] Sentence . . . .
8. At the time of sentencing [Napper] had an open case in
Westmoreland County . . . where he was charged with
Drug Delivery Resulting in Death.
9. The State’s attorneys argued that this open case made
him ineligible for a[n] RRRI sentence.
10. The Cou[r]t indicated that if the case in Westmoreland
County were resolved in a way that would not preclude
[Napper] from a[n] RRRI sentence, that defense counsel
could petition The Court requesting a[n] RRRI sentence.
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Mot. to Correct Sent., 11/13/15, ¶¶ 7-10. Thus, Napper asked the PCRA
court to amend his sentence to include an RRRI sentence.
In its opinion, the PCRA court acknowledged that Napper “would be
entitled to a[n] RRRI sentence if he was eligible for resentencing, as the
other criminal matter has been resolved.” 1925(a) Op. at 5 n.2. However,
the PCRA court expressly declined to address the merits of Napper’s petition.
Recognizing that the PCRA was Napper’s “only avenue for relief,” the PCRA
court concluded that Napper “was unable to establish an exception” to the
one-year time bar. Id.; see id. at 5 (“[T]his Court has no jurisdiction over
the substantive issues raised by [Napper].”).4
Because we have concluded that Napper established an exception to
the one-year time bar, the PCRA court erred in dismissing his petition as
untimely. Accordingly, we reverse and remand this matter to the PCRA
court for consideration of the merits of Napper’s PCRA petition.
Order reversed. Case remanded with instructions. Jurisdiction
relinquished.
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4
On appeal, Napper also argues that his sentence is illegal, which the
PCRA court rejected in dictum. See Napper’s Br. at 4, 12; 1925(a) Op. at 5
n.2. However, Napper did not challenge the legality of his sentence in his
PCRA petition, so that claim was not properly before the PCRA court.
Rather, Napper merely averred that he is entitled to a corrected sentence
consistent with the trial court’s statements on the record at the time of
sentencing. See Mot. to Correct Sent., 11/13/15, ¶¶ 10, 12; Mot. to
Reconsider, 12/11/15, ¶¶ 5, 9, 28.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/22/2017
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