Com. v. Salaam-Abdul, A.

J-S02039-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ABEY R. SALAAM-ABDUL :
:
Appellant : No. 1036 MDA 2022
Appeal FROM the PCRA Order Entered June 20, 2022
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0001471-1999
BEFORE: PANELLA, P.J., OLSON, J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED: APRIL 5, 2023
Appellant, Abey R. Salaam-Abdul,1 appeals from the Order dismissing
his second petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541-46, as untimely. Appellant asserts his sentence imposed
upon revocation is illegal, and relies on Commonwealth v. Simmons, 262
A.3d 512 (Pa. Super. 2021), as fulfilling the newly discovered facts exception
to the PCRA’s one-year time bar. After careful review, we affirm.
We provide only the facts and procedural history relevant to this appeal.
In 2000, a jury convicted Appellant of six drug offenses and the court
sentenced him to an aggregate term of three to twenty years’ incarceration.
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1 Appellant’s surname has been stated as either Salaam-Abdul or Abdul-
Salaam throughout the history of this case. Although Appellant’s Notice of
Appeal identifies Appellant as “Abey Abdul-Salaam,” the relevant trial court
docket identifies him as Abey R. Salaam-Abdul. We do the same for
consistency.
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In addition, the court imposed on three of the six counts a twenty-year term
of probation to commence upon Appellant’s release from prison. On the
remaining three counts, the court imposed an aggregate term of probation to
begin in year six of Appellant’s twenty-year probationary term and run
concurrently through the remaining fourteen years. In 2003, while on parole
and serving his first probationary term, Appellant committed new drug
offenses for which he was tried, convicted, and sentenced in 2005.
Following the 2005 sentencing hearing, the court held a probation
revocation hearing and found that Appellant had violated the terms of his
probation. The court then resentenced Appellant, as follows: on the three
counts that were subject to the initial twenty-year term of probation which
Appellant was serving when he committed his 2003 offenses, the court
resentenced him to forty-five months to fifteen years’ incarceration. On the
three counts for which the probationary term had not yet begun to run
because Appellant had not yet reached the six-year mark in his probationary
term, the court resentenced him to an aggregate term of two to ten years’
incarceration, followed by three years’ intermediate punishment. This Court
affirmed the revocation sentence in 2009 and the Pennsylvania Supreme Court
denied allowance of appeal on June 16, 2010. See Commonwealth v.
Abdul-Salaam, 990 A.2d 34 (Pa. Super. 2009) (unpublished memorandum),
appeal denied, 996 A.2d 1067 (Pa. 2010).
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On May 19, 2022, Appellant filed his second PCRA petition2 pro se,
asserting that the revocation court erred by anticipatorily revoking the
probationary term which had not begun running at the time he committed his
2003 offenses and, therefore, his revocation sentence is illegal. He contended
his petition fell within the PCRA’s timeliness exception set forth at 42 P.S.
9545(b)(1)(ii), citing Commonwealth v. Simmons, 262 A.3d 512 (Pa.
Super. 2021), as a previously unknown fact which rendered his 2005
revocation sentence illegal.3 On May 24, 2022, the PCRA court filed a Notice
of Intent to dismiss without a hearing pursuant to Pa.R.Crim.P. 907. Appellant
filed a response. On June 20, 2022, the court dismissed the petition as
untimely.
Appellant timely appealed pro se. He presents the following questions
for our review:
1. Did the PCRA court err as a matter of law in Appellants burden
of proof requirement of Section 42 Pa.C.S. 9545(b)(1)(ii)?
2. Did the PCRA court err as a matter of law in not correcting
Appellant’s statutory invalid and illegal sentences in the
anticipatory revocation of Appellants probation in light of this
Courts decision in Simmons, supra?
Appellant’s Br. at 2B (verbatim).
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2 Appellant did not obtain relief from his first PCRA Petition filed in 2011.
3 In Simmons, this Court held that a court may not anticipatorily revoke a
term of probation when an offender commits a new crime after sentencing but
before the period of probation has begun. 232 A.3d at 527.
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A.
We review the denial of a PCRA petition to determine whether the record
supports the PCRA court’s findings and whether its order is otherwise free of
legal error. Commonwealth v. Dozier, 208 A.3d 1101, 1103 (Pa. Super.
2019). This Court grants “great deference to the factual findings of the PCRA
court” if they are supported by the record. Id. (citation omitted). For
questions of law, “our standard of review is de novo[,] and our scope of review
is plenary.” Id. (citation omitted).
It is well-settled that “the timeliness of a PCRA petition is [] a
jurisdictional requisite.” Commonwealth v. Zeigler, 148 A.3d 849, 853 (Pa.
Super. 2016). “A PCRA petition, including a second or subsequent one, must
be filed within one year of the date the petitioner’s judgment of sentence
became final, unless he pleads and proves one of the three exceptions outlined
in 42 Pa.C.S. § 9545(b)(1).” Commonwealth v. Jones, 54 A.3d 14, 16 (Pa.
2012). If a petitioner fails to plead and prove a valid exception to the PCRA
time-bar, neither the PCRA court nor this Court may review the merits of the
claims raised in the petition. Commonwealth v. Watts, 23 A.3d 980, 983
(Pa. 2011).
Appellant filed the instant PCRA petition over eleven years after his
revocation sentence became final. The petition is, thus, patently untimely. In
his PCRA Petition, Appellant attempted to overcome the time-bar by asserting
that Simmons, supra, presented a newly discovered fact to meet the Section
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9545(b)(1)(ii) timeliness exception. See Motion for Post Conviction Collateral
Relief, filed May 19, 2022, at 1.
The newly discovered fact exception requires that a petitioner plead and
prove “that there were ‘facts’ that were ‘unknown’ to him and that he
exercised ‘due diligence’” in the discovery of those facts. Commonwealth v.
Bennett, 930 A.2d 1264, 1270 (Pa. 2007). The “petitioner must explain why
he could not have obtained the new fact(s) earlier with the exercise of due
diligence.” Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super.
2010). Finally, the petitioner must raise the claim within one year from the
time the claim could have been raised. 42 Pa.C.S. § 9545(b)(2).
Our Supreme Court has held “that subsequent decisional law does not
amount to a new “fact” under section 9545(b)(1)(ii) of the PCRA.” See
Commonwealth v. Watts, 23 A.3d 980, 986-87 (Pa. 2011) (explaining that
subsection (b)(1)(ii) “applies only if the petitioner has uncovered facts that
could not have been ascertained through due diligence, and judicial
determinations are not facts.”). Watts is dispositive of the instant appeal.
Here, the PCRA court properly exercised its discretion in concluding that
it did not have jurisdiction to address Appellant’s untimely PCRA petition. The
PCRA court acknowledged that Simmons changed the law by precluding the
anticipatory revocation of probation, but correctly observed that decisional law
does not satisfy the newly discovered facts exception set forth in Section
9545(b)(1)(ii). See Notice of Intent to Dismiss, 5/24/22, at 6, citing Watts,
supra.
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Appellant has not addressed the PCRA court’s reasoning or its reliance
on Watts. Rather, he asserts that his sentence was illegal because Simmons
prohibits the anticipatory revocation of probation so he should receive PCRA
relief. While Appellant is correct that a legality of sentence claim is cognizable
under the PCRA, the claim must still be raised within the PCRA’s time limits or
meet a timeliness exception. See Commonwealth v. Fahy, 737 A.2d 214,
223 (Pa. 1999) (holding that claims challenging the legality of sentence are
subject to review within PCRA but must first satisfy the PCRA’s time limits).
As noted above, Appellant’s reliance on Simmons does not satisfy the newly
discovered fact exception to the PCRA’s time limits. Thus, Appellant’s petition
is untimely and we are without jurisdiction to consider its merits.
Accordingly, we affirm the order dismissing Appellant’s PCRA petition as
untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/05/2023
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