Com. v. Martin, K.

• Court: Superior Court of Pennsylvania
• Decided: December 22, 2023
• Docket: 326 MDA 2023
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37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

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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?

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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.

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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;

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(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

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(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).

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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)

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(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

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