Com. v. Bates, G.

• Court: Superior Court of Pennsylvania
• Decided: December 21, 2018
• Docket: 1148 EDA 2018
• Status: Unpublished

Opinion

J-S70045-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : GARY BATES : : Appellant : No. 1148 EDA 2018

Appeal from the PCRA Order March 19, 2018 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0001532-1976

BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

JUDGMENT ORDER BY GANTMAN, P.J.: FILED DECEMBER 21, 2018

Appellant, Gary Bates, appeals from the order entered in the Chester

County Court of Common Pleas, which dismissed his serial pro se petition

brought pursuant to the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A.

§§ 9541-9546. On March 17, 1977, a jury convicted Appellant of first-degree

murder, robbery, burglary, conspiracy, and several weapons offenses. The

court sentenced Appellant on March 21, 1979, to life imprisonment without

parole. Our Supreme Court affirmed on May 5, 1981. On May 28, 1982,

Appellant filed his first petition for post-conviction relief, which the court

denied on October 26, 1984. This Court affirmed on November 16, 1989, and

our Supreme Court denied allowance of appeal on May 21, 1990.

Subsequently, Appellant unsuccessfully litigated six more PCRA petitions.

Appellant filed the current pro se serial PCRA petition on November 17, 2017. J-S70045-18

The PCRA court issued Rule 907 notice on February 8, 2018; Appellant filed a

pro se response on March 12, 2018. The PCRA court dismissed Appellant’s

PCRA petition as untimely on March 20, 2018. Appellant timely filed a pro se

notice of appeal on April 16, 2018. The PCRA court ordered Appellant on April

20, 2018, to file a concise statement of errors complained of on appeal per

Pa.R.A.P. 1925(b); Appellant failed to comply.

The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A PCRA

petition, including a second or subsequent petition, shall be filed within one

year of the date the underlying judgment of sentence becomes final. 42

Pa.C.S.A. § 9545(b)(1). A judgment of sentence is deemed final at the

conclusion of direct review, including discretionary review in the U.S. Supreme

Court and the Pennsylvania Supreme Court, or upon expiration of the time for

seeking the review. 42 Pa.C.S.A. § 9545(b)(3). The statutory exceptions to

the PCRA time-bar allow for very limited circumstances to excuse the late filing

of a petition; a petitioner asserting a timeliness exception must file a petition

within 60 days of when the claim could have been presented. 42 Pa.C.S.A. §

9545(b)(1-2). The newly-discovered facts exception at Section 9545(b)(1)(ii)

requires a petitioner to plead and prove he: (1) did not know the facts

underlying his petition; and (2) could not have learned those facts earlier by

the exercise of due diligence. Commonwealth v. Shiloh, 170 A.3d 553

(Pa.Super. 2017). Generally, Pennsylvania courts presume that information

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of public record is not “unknown” for purposes of the Section 9545(b)(1)(ii)

exception. Commonwealth v. Chester, 586 Pa. 468, 895 A.2d 520 (2006).

Pennsylvania courts, however, do not apply the public record presumption to

pro se incarcerated PCRA petitioners; but, a pro se incarcerated petitioner is

still required to plead and prove the petitioner’s due diligence.

Commonwealth v. Burton, 121 A.3d 1063 (Pa.Super. 2015) (en banc),

aff’d, 638 Pa. 687, 158 A.3d 618 (2017); Shiloh, supra at 559.

Instantly, the judgment of sentence became final on Monday, July 6,

1981, upon expiration of the time for filing a petition for writ of certiorari with

the U.S. Supreme Court. See U.S.Sup.Ct.R. 20 (effective 6/30/80 to 7/31/84;

providing 60 days to file petition for writ of certiorari with U.S. Supreme

Court). Appellant filed the current petition on November 17, 2017, which is

patently untimely. See 42 Pa.C.S.A. § 9545(b)(1). Appellant attempts to

invoke the “newly-discovered fact” exception by asserting a Commonwealth’s

trial witness falsely testified she had not received a plea deal in exchange for

her trial testimony implicating Appellant in the underlying offenses, and the

Commonwealth failed to disclose the existence of that plea deal. Appellant,

however, failed to state how and when he purportedly learned of this witness’

alleged plea deal or to present any support for his claim that the witness had

taken a plea deal. Therefore, Appellant failed to satisfy the sixty-day rule or

prove he exercised due diligence to discover the witness had a plea deal. See

Burton, supra; 42 Pa.C.S.A. § 9545(b)(1-2). Additionally, Appellant cannot

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satisfy the sixty-day rule simply by citing to numerous cases like Shiloh,

supra, which addressed a similar PCRA claim. See Commonwealth v.

Watts, 611 Pa. 80, 23 A.3d 980 (2011) (stating judicial determinations are

not “facts” within meaning of Section 9545(b)(1)(ii)). Therefore, Appellant’s

current petition remains time-barred, and the PCRA court lacked jurisdiction

to review it on the merits. Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/21/18

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