Com. v. Martin, K.

J-S45006-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KIRBY JOHN MARTIN :
:
Appellant : No. 326 MDA 2023
Appeal from the PCRA Order Entered February 2, 2023
In the Court of Common Pleas of Adams County Criminal Division at
No(s): CP-01-CR-0000485-2013
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KIRBY JOHN MARTIN :
:
Appellant : No. 327 MDA 2023
Appeal from the PCRA Order Entered February 2, 2023
In the Court of Common Pleas of Adams County Criminal Division at
No(s): CP-01-CR-0000837-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KIRBY JOHN MARTIN :
:
Appellant : No. 328 MDA 2023
Appeal from the PCRA Order Entered February 2, 2023
In the Court of Common Pleas of Adams County Criminal Division at
No(s): CP-01-CR-0000884-2015
J-S45006-23
BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED: DECEMBER 22, 2023
Kirby John Martin appeals from the order dismissing as untimely his
fourth petition filed pursuant to the Post Conviction Relief Act (“PCRA”). 1 We
affirm.
By way of background, Appellant pled guilty to one count of receiving
stolen property after he was found to be in possession of a unique, quilled
knife that was reported stolen from a historical art gallery in Gettysburg,
Pennsylvania. He was sentenced to two years of probation, consecutive to a
then-outstanding sentence. Before beginning his probationary term,
however, Appellant was convicted of additional crimes at docket numbers 837
and 884 of 2015. Based on the new convictions, the trial court anticipatorily
revoked Appellant’s probation and resentenced him to two and one-half to five
years of incarceration on April 28, 2016. Appellant did not file a direct appeal,
and accordingly that judgment of sentence became final on May 30, 2016.
Since then, Appellant has filed three PCRA petitions challenging this
judgment, all of which were denied or dismissed. On December 21, 2022,
Appellant filed the instant pro se petition, his fourth, raising numerous claims
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 Appellant’s petition was filed as to three underlying criminal cases:
docket
numbers 485 of 2013, 837 of 2015, and 884 of 2015. Despite this, the petition
relates exclusively to Appellant’s sentence imposed at docket number 485 of
2013. See PCRA Petition, 12/21/22, at 1 (“This pleading concerns the
following information, indictment or criminal complaint number(s): CP-01-
CR-0000485-2013.”). Accordingly, unless stated otherwise, our discussion
focuses only on that case.
-2-
J-S45006-23
of ineffective assistance of counsel and due process violations. The attorney
whom the court appointed to represent Appellant as to his third PCRA petition
sought leave to withdraw from the instant matter, which the PCRA court
granted. The court thereafter issued a notice of its intention to dismiss the
petition as untimely pursuant to Pa.R.Crim.P. 907. Appellant filed a pro se
response, discussing his belief that the trial court violated his due process
rights by resentencing him before he began serving his probationary term and
raising purported errors stemming from his preliminary hearing. The PCRA
court ultimately denied the petition on February 2, 2023.
Appellant filed a timely pro se notice of appeal at each of the three
referenced dockets. Both he and the PCRA complied with Pa.R.A.P. 1925.2
Upon Appellant’s application, we consolidated the three cases on appeal.
Appellant presents the following five issues for our review:
1. Did the [PCRA] court err in dismissing Appellant’s PCRA
petition as untimely, without jurisdiction, and without merit to be
heard, when Appellant proved a due process violation occurred
and his counsel was ineffective?
2. Did the trial court create an illegal sentence and unlawful
sentence in lieu of [the] due process violations?
3. Did the trial court lack authority under Pennsylvania law to
revoke a consecutive period of probation that Appellant had not
yet begun?
____________________________________________
2 In its Rule 1925(a) opinion, the PCRA court directed us to its notice of
intention to dismiss, entered on January 12, 2023, wherein it provided the
reasoning for its decision.
-3-
J-S45006-23
4. Was trial counsel ineffective for refusing to appeal the initial
resentencing of Appellant’s probation upon request?
5. Was PCRA counsel [appointed for Appellant’s prior PCRA
petition] ineffective for failing to amend Appellant’s PCRA
[petition], upon request, to properly assert the untimely
exceptions?
Appellant’s brief at 4 (cleaned up).
We address the propriety of the PCRA court’s denial order as follows:
[O]ur standard of review from the denial of a PCRA petition is
limited to examining whether the PCRA court’s determination is
supported by the evidence of record and whether it is free of legal
error. The PCRA court’s credibility determinations, when
supported by the record, are binding on this Court; however, we
apply a de novo standard of review to the PCRA court’s legal
conclusions.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa.Super. 2019)
(cleaned up).
Before turning to the merits of Appellant’s claims, we must first
determine whether his petition was timely, since neither this Court nor the
PCRA court has jurisdiction to consider the merits of any claims raised in an
untimely PCRA petition. See Commonwealth v. Ballance, 203 A.3d 1027,
1030-31 (Pa.Super. 2019). In this respect, the PCRA provides as follows:
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:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation
of the claim in violation of the Constitution or laws of this
Commonwealth or the Constitution or laws of the United
States;
-4-
J-S45006-23
(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.
42 Pa.C.S. § 9545(b). Any petitioner invoking one of these exceptions must
file a petition “within one year of the date the claim could have been
presented.” 42 Pa.C.S. § 9545(b)(2). Additionally, this Court has stated that
the petitioner “bears the burden of pleading and proving an applicable
statutory exception.” Commonwealth v. Pew, 189 A.3d 486, 488
(Pa.Super. 2018).
As identified above, the judgment pertaining to Appellant’s conviction
for receiving stolen property became final in May 2016, after he was
resentenced and filed no direct appeal. There is no dispute that the instant
petition was facially untimely. Therefore, Appellant had the burden to plead
and prove one of the enumerated exceptions to the PCRA’s time bar in his
petition before the PCRA court could consider the merits of any of his claims.
Based upon our review of the petition, we find that Appellant inartfully
invoked two exceptions to the timeliness requirement. Although the
averments were not entirely cohesive, from what we can gather, he contended
that this Court’s decision in Commonwealth v. Simmons, 262 A.3d 512-5-
J-S45006-23
(Pa.Super. 2021) (en banc),3 bears on the exceptions for both newly-
discovered facts and a newly recognized constitutional right. See PCRA
Petition, 12/21/22, at 3-6. Within his petition, Appellant claimed that this
opinion constituted a newly-discovered fact since he only recently learned of
the decision, and asserted that he could not have learned of it sooner due to
restrictions in the prison stemming from the COVID-19 pandemic. Id. at 4.
Appellant also averred that the Simmons decision recognized a new
constitutional right because, in his mind, it made his revocation sentence in
2016 void ab initio. Id. at 5.
We note that in order to successfully invoke the newly-discovered facts
exception under § 9545(b)(1)(ii), a petitioner must “establish that the facts
upon which the claim is based were unknown to him and could not have been
ascertained by the exercise of due diligence.” Commonwealth v. Burton,
158 A.3d 618, 629 (Pa. 2017). Relatedly, regarding the newly-recognized
constitutional right exception, our High Court has stated that a petitioner must
prove “a constitutional right was recognized by the Supreme Court of the
United States or this Court” and that the right has been held, by one of those
courts, to apply retroactively. Commonwealth v. Taylor, 283 A.3d 178, 187
(Pa. 2022) (citation omitted).
____________________________________________
3 In that case, we examined various sections of the Sentencing Code and held
that a “court may [not] anticipatorily revoke an order of probation[,]” thereby
overturning longstanding precedent to the contrary. Commonwealth v.
Simmons, 262 A.3d 512, 524 (Pa.Super. 2021) (en banc).
-6-
J-S45006-23
In denying Appellant’s petition as untimely, the PCRA court thoroughly
summarized the law applicable to each of the exceptions to the PCRA’s
timeliness requirements and concluded that Appellant failed to carry his
burden as to any exception. See Notice of Intent to Dismiss, 1/12/23, at 2-
4. With regard to Appellant’s assertion of a newly-discovered fact, the court
accurately noted that decisional caselaw does not constitute a new fact. Id.at 2 (citing Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011)).
Concerning Appellant’s proclaimed newly-recognized constitutional right, the
PCRA court determined that Simmons did not confer any new right, as it
merely concerned statutory interpretation. Id. at 4. The court finally
concluded that nothing in Simmons indicated that its holding applied
retroactively. Id.
The PCRA court’s decision to deny the petition as untimely is supported
by the record and free from legal error. Appellant’s asserted newly-discovered
fact can be readily rejected since, as the PCRA court correctly noted, our High
Court has determined that “judicial determinations are not facts.” Watts,
supra at 986. Similarly, we agree that Simmons has not been determined
by either the Pennsylvania Supreme Court or United States Supreme Court to
apply retroactively or grant a new constitutional right. Even though that
decision overruled longstanding precedent, it did not invalidate, in whole or in
part, any statute governing the revocation of probation, but merely handed
down a different interpretation of the constitutionally-sound enactments.
Compare Commonwealth v. McIntrye, 232 A.3d 609, 619 (Pa. 2020)
-7-
J-S45006-23
(holding appellant’s timely PCRA petition entitled him to relief where a decision
handed down after his judgment of sentence became final declared the statute
under which he waws convicted void ab initio); with Commonwealth v.
Bracey, 795 A.2d 935, 939 n.3 (Pa. 2001) (holding PCRA petitioner was not
entitled to benefit of the new interpretation of a Sentencing Code provision
that was announced after his direct appeal had concluded). Therefore,
Appellant has failed to demonstrate that any exception to the PCRA’s time bar
applies to his facially untimely petition.
In sum, Appellant’s fourth PCRA petition is untimely, and we lack
jurisdiction to consider the merits of the arguments raised therein.
Accordingly, we affirm the PCRA court’s order dismissing the petition.
Order affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 12/22/2023
-8-