J-S12006-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROLAND GATHRIGHT : : Appellant : No. 1989 EDA 2023
Appeal from the PCRA Order Entered June 30, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001034-2009, CP-51-CR-0001055-2009
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROLAND GATHRIGHT, : : Appellant : No. 2666 EDA 2023
Appeal from the PCRA Order Entered June 30, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001034-2009, CP-51-CR-0001055-2009
BEFORE: DUBOW, J., SULLIVAN, J., and BENDER, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED JULY 10, 2024
Appellant, Roland Gathright, appeals pro se from the order entered June
30, 2023, in the Philadelphia County Court of Common Pleas dismissing as
untimely his second petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-46. Because Appellant’s petition fails to satisfy
an exception to the PCRA’s time bar, we affirm the PCRA court’s dismissal. J-S12006-24
A.
We glean the relevant procedural history from the PCRA court opinion.
The Commonwealth charged Appellant at two separate docket numbers 1 with
Rape and related offenses arising from the sexual abuse of his two nieces. On
May 17, 2011, Appellant pleaded guilty to inter alia, two counts of Rape, one
at each docket number.2 The court sentenced Appellant to an aggregate term
of 20-40 years’ incarceration.
This Court affirmed Appellant’s judgment of sentence, and the
Pennsylvania Supreme Court denied Appellant’s petition for allowance of
appeal on June 29, 2018. Commonwealth v. Gathright, 2018 WL 2423688
(Pa. Super. May 30, 2018), appeal denied, 202 A.3d 685 (Pa. 2018).
Appellant’s judgment of sentence, thus, became final on September 27,
2018.3
Appellant timely filed his first PCRA petition on January 3, 2020,
asserting, inter alia, that the court had discharged both counts of Rape at his
preliminary hearing verbally, but not in its written order. PCRA Petition,
1/3/20, at 4. The PCRA court dismissed Appellant’s petition without a hearing
____________________________________________
1 CP-51-CR-0001034-2009 and CP-51-CR-0001055-2009.
2 Prior to sentencing, Appellant sought to withdraw his guilty plea. The court initially granted the motion for withdrawal, but later denied it following appeal and remand.
3 See Sup. Ct. R. 13 (allowing 90 days to file a Petition for Writ of Certiorari
to the United States Supreme Court).
-2- J-S12006-24
on March 23, 2021. This Court affirmed the dismissal, and, according to the
PCRA court, the Pennsylvania Supreme Court administratively closed
Appellant’s petition for allowance of appeal on October 6, 2022, for failure to
perfect. Commonwealth v. Gathright, 2022 WL 1665239 (Pa. Super. May
25, 2022) (unpublished memorandum); PCRA Ct. Op., 10/20/23, at 4.
On November 4, 2022, Appellant pro se filed his second PCRA Petition,
the dismissal of which is now before us, asserting that his counsel, Deborah
Fagen, Esq., was ineffective for failing to argue prior to his plea that the court
should have dismissed the Rape charges in writing, not verbally, at his
preliminary hearing. PCRA Petition, 11/4/22, at 4.
On March 28, 2023, the PCRA court issued a notice of intent to dismiss
without a hearing pursuant to Pa.R.Crim.P. 907, concluding that it lacked
jurisdiction because Appellant’s petition was patently untimely. Appellant did
not file a response. On June 30, 2023, the PCRA court dismissed the petition
as untimely. Appellant timely appealed.
B.
Appellant challenges the PCRA court’s dismissal of his petition as
untimely.4 He argues that the COVID-19 lockdown prevented him from using
the prison law library, and thus, he could not have found the “newly discovered
4 Appellant’s brief does not contain a Statement of Questions Presented as required by Pa.R.A.P. 2116. We nonetheless discern his issue from the argument presented in his brief.
-3- J-S12006-24
evidence” of his counsel’s ineffectiveness until the lockdown was lifted.
Appellant’s Br. at 2 (unpaginated).
We review the dismissal of a PCRA petition to determine whether the
record supports the PCRA court’s determination and whether its order is
otherwise free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803
(Pa. 2014). However, before we review the issues raised on appeal, we must
determine whether Appellant’s petition satisfies the jurisdictional timeliness
requirements.
It is well-established that the timeliness of a PCRA petition is
jurisdictional; if a PCRA petition is untimely, courts lack jurisdiction over the
claims and cannot grant relief. Commonwealth v. Wharton, 886 A.2d 1120,
1124 (Pa. 2005). To be timely, a PCRA petition, including a second or
subsequent petition, must be filed within one year of the date that a
petitioner’s judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1).
“[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 the time for seeking
the review.” 42 Pa.C.S. § 9545(b)(3). The PCRA’s jurisdictional time bar “is
constitutionally valid.” Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa.
2004).
Here, Appellant’s petition, filed four years after his judgment of sentence
became final, is facially untimely. Pennsylvania courts may consider an
untimely PCRA petition, however, if the petitioner pleads and proves one of
-4- J-S12006-24
the three exceptions to the time bar set forth in Section 9545(b)(1). Any
petition invoking a timeliness exception must be “filed within one year of the
date the claim could have been presented.” 42 Pa.C.S § 9545(b)(2).
To establish the newly discovered facts exception to the time bar, a
petitioner must plead and prove that “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.” 42 Pa.C.S. § 9545(b)(1)(ii).
Our Supreme Court has held that this exception “does not require any merits
analysis of the underlying claim” but merely requires the petitioner to plead
and prove two elements: “1) the facts upon which the claim was predicated
were unknown and 2) could not have been ascertained by the exercise of due
diligence.” Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007)
(internal quotation marks and emphasis omitted), citing 42 Pa.C.S. §
9545(b)(1)(ii).
Relevantly, “a petitioner’s belief that he has uncovered a colorable claim
of ineffectiveness by prior counsel does not entitle the petitioner to an
exception to the timeliness requirements.” Commonwealth v. Crews, 863
A.2d 498, 503 (Pa. 2004). Furthermore, our court has held that decisional
law and state procedural rules do not constitute facts for the purpose of the
newly discovered fact exception.
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J-S12006-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROLAND GATHRIGHT : : Appellant : No. 1989 EDA 2023
Appeal from the PCRA Order Entered June 30, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001034-2009, CP-51-CR-0001055-2009
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROLAND GATHRIGHT, : : Appellant : No. 2666 EDA 2023
Appeal from the PCRA Order Entered June 30, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001034-2009, CP-51-CR-0001055-2009
BEFORE: DUBOW, J., SULLIVAN, J., and BENDER, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED JULY 10, 2024
Appellant, Roland Gathright, appeals pro se from the order entered June
30, 2023, in the Philadelphia County Court of Common Pleas dismissing as
untimely his second petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-46. Because Appellant’s petition fails to satisfy
an exception to the PCRA’s time bar, we affirm the PCRA court’s dismissal. J-S12006-24
A.
We glean the relevant procedural history from the PCRA court opinion.
The Commonwealth charged Appellant at two separate docket numbers 1 with
Rape and related offenses arising from the sexual abuse of his two nieces. On
May 17, 2011, Appellant pleaded guilty to inter alia, two counts of Rape, one
at each docket number.2 The court sentenced Appellant to an aggregate term
of 20-40 years’ incarceration.
This Court affirmed Appellant’s judgment of sentence, and the
Pennsylvania Supreme Court denied Appellant’s petition for allowance of
appeal on June 29, 2018. Commonwealth v. Gathright, 2018 WL 2423688
(Pa. Super. May 30, 2018), appeal denied, 202 A.3d 685 (Pa. 2018).
Appellant’s judgment of sentence, thus, became final on September 27,
2018.3
Appellant timely filed his first PCRA petition on January 3, 2020,
asserting, inter alia, that the court had discharged both counts of Rape at his
preliminary hearing verbally, but not in its written order. PCRA Petition,
1/3/20, at 4. The PCRA court dismissed Appellant’s petition without a hearing
____________________________________________
1 CP-51-CR-0001034-2009 and CP-51-CR-0001055-2009.
2 Prior to sentencing, Appellant sought to withdraw his guilty plea. The court initially granted the motion for withdrawal, but later denied it following appeal and remand.
3 See Sup. Ct. R. 13 (allowing 90 days to file a Petition for Writ of Certiorari
to the United States Supreme Court).
-2- J-S12006-24
on March 23, 2021. This Court affirmed the dismissal, and, according to the
PCRA court, the Pennsylvania Supreme Court administratively closed
Appellant’s petition for allowance of appeal on October 6, 2022, for failure to
perfect. Commonwealth v. Gathright, 2022 WL 1665239 (Pa. Super. May
25, 2022) (unpublished memorandum); PCRA Ct. Op., 10/20/23, at 4.
On November 4, 2022, Appellant pro se filed his second PCRA Petition,
the dismissal of which is now before us, asserting that his counsel, Deborah
Fagen, Esq., was ineffective for failing to argue prior to his plea that the court
should have dismissed the Rape charges in writing, not verbally, at his
preliminary hearing. PCRA Petition, 11/4/22, at 4.
On March 28, 2023, the PCRA court issued a notice of intent to dismiss
without a hearing pursuant to Pa.R.Crim.P. 907, concluding that it lacked
jurisdiction because Appellant’s petition was patently untimely. Appellant did
not file a response. On June 30, 2023, the PCRA court dismissed the petition
as untimely. Appellant timely appealed.
B.
Appellant challenges the PCRA court’s dismissal of his petition as
untimely.4 He argues that the COVID-19 lockdown prevented him from using
the prison law library, and thus, he could not have found the “newly discovered
4 Appellant’s brief does not contain a Statement of Questions Presented as required by Pa.R.A.P. 2116. We nonetheless discern his issue from the argument presented in his brief.
-3- J-S12006-24
evidence” of his counsel’s ineffectiveness until the lockdown was lifted.
Appellant’s Br. at 2 (unpaginated).
We review the dismissal of a PCRA petition to determine whether the
record supports the PCRA court’s determination and whether its order is
otherwise free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803
(Pa. 2014). However, before we review the issues raised on appeal, we must
determine whether Appellant’s petition satisfies the jurisdictional timeliness
requirements.
It is well-established that the timeliness of a PCRA petition is
jurisdictional; if a PCRA petition is untimely, courts lack jurisdiction over the
claims and cannot grant relief. Commonwealth v. Wharton, 886 A.2d 1120,
1124 (Pa. 2005). To be timely, a PCRA petition, including a second or
subsequent petition, must be filed within one year of the date that a
petitioner’s judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1).
“[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 the time for seeking
the review.” 42 Pa.C.S. § 9545(b)(3). The PCRA’s jurisdictional time bar “is
constitutionally valid.” Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa.
2004).
Here, Appellant’s petition, filed four years after his judgment of sentence
became final, is facially untimely. Pennsylvania courts may consider an
untimely PCRA petition, however, if the petitioner pleads and proves one of
-4- J-S12006-24
the three exceptions to the time bar set forth in Section 9545(b)(1). Any
petition invoking a timeliness exception must be “filed within one year of the
date the claim could have been presented.” 42 Pa.C.S § 9545(b)(2).
To establish the newly discovered facts exception to the time bar, a
petitioner must plead and prove that “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.” 42 Pa.C.S. § 9545(b)(1)(ii).
Our Supreme Court has held that this exception “does not require any merits
analysis of the underlying claim” but merely requires the petitioner to plead
and prove two elements: “1) the facts upon which the claim was predicated
were unknown and 2) could not have been ascertained by the exercise of due
diligence.” Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007)
(internal quotation marks and emphasis omitted), citing 42 Pa.C.S. §
9545(b)(1)(ii).
Relevantly, “a petitioner’s belief that he has uncovered a colorable claim
of ineffectiveness by prior counsel does not entitle the petitioner to an
exception to the timeliness requirements.” Commonwealth v. Crews, 863
A.2d 498, 503 (Pa. 2004). Furthermore, our court has held that decisional
law and state procedural rules do not constitute facts for the purpose of the
newly discovered fact exception. Commonwealth v. Kennedy, 266 A.3d
1128, 1135 (Pa. Super. 2021).
-5- J-S12006-24
Finally, it is the appellant’s burden to persuade this Court that the PCRA
court erred, and that relief is due. Commonwealth v. Feliciano, 69 A.3d
1270, 1275 (Pa. Super. 2013).
C.
The PCRA court found that Appellant’s petition was untimely, and he
failed to “properly invoke” any of the exceptions to the PCRA’s time bar. PCRA
Ct. Op. at 6. Specifically, the court determined that ineffective assistance of
counsel claims do not satisfy any of the exceptions to the time bar, and that
the Rules of Criminal Procedure cited by Appellant5 cannot constitute facts in
order to satisfy the newly discovered fact exception. 6 Id.
Following our review, we discern no error in the PCRA court’s reasoning,
and we conclude that Appellant failed to plead and prove any exception to the
time bar as set forth in Section 9545(b)(1). Furthermore, it is Appellant’s
burden to persuade this Court that the PCRA court erred, and that he is
entitled to relief. Feliciano, 69 A.3d at 1275. In his brief to this court,
Appellant fails to establish how the PCRA court erred in determining that he ____________________________________________
5 Specifically, in his petition, he maintained that Pennsylvania Rules of Criminal Procedure 544 and 561 and his counsel’s ineffectiveness were newly discovered facts that met the exception to the PCRA’s time bar. PCRA Petition, 11/4/22, at 3; PCRA Ct. Op. at 6.
6 The PCRA court also determined that Appellant had previously litigated this
claim and he is attempting to “raise a nearly identical argument” in the current PCRA. PCRA Ct. Op. at 7-8. See also 42 Pa.C.S. § 9543(a)(3) (requiring that the claim the defendant seeks to raise in a PCRA petition “has not been previously litigated or waived.”). Although we agree with the PCRA court that Appellant already raised this issue, we need not address it in this appeal.
-6- J-S12006-24
did not meet any of the enumerated exceptions to the time bar. Accordingly,
Appellant has not satisfied the PCRA’s timeliness requirements, and thus, this
Court, like the PCRA court, lacks jurisdiction to consider the merits of his
claims. Therefore, we affirm the dismissal of Appellant’s second PCRA
petition.
Order affirmed.
Date: 7/10/2024
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