Com. v. Wells, D.

• Court: Superior Court of Pennsylvania
• Decided: November 20, 2023
• Docket: 2786 EDA 2022
• Status: Unpublished

Opinion

J-S26037-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DERECK WELLS : : Appellant : No. 2786 EDA 2022

Appeal from the PCRA Order Entered September 30, 2022 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0007429-2007

BEFORE: STABILE, J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED NOVEMBER 20, 2023

Dereck Wells appeals the dismissal of his Post Conviction Relief Act

(“PCRA”) petition. See 42 Pa.C.S.A. §§ 9541-9546. He claims the PCRA court

erred in denying his petition as untimely. We affirm.

Wells pled guilty on January 7, 2008, to possession of an instrument of

crime.1 The court sentenced him to a term of time served to 23 months’

incarceration and three years of reporting probation. Before Wells began

serving his probationary sentence, the trial court found him in violation of

probation and resentenced him, in July 2010.2 ____________________________________________

1 18 Pa.C.S.A. § 907(b).

2 The trial court sentenced Wells to one and one half to three years’ incarceration to be served consecutively to an unrelated case. See Certificate of Imposition of Judgment of Sentence, filed 7/27/10 (noting sentence to run consecutive with Dockets 6352-09 and 6558-09; PCRA Petition, filed 5/12/22, (Footnote Continued Next Page) J-S26037-23

In May 2022, Wells filed the instant counseled PCRA petition. He claimed

that the court had imposed an illegal sentence when it revoked his probation

before it had begun. He maintained that pursuant to Commonwealth v.

Simmons, 262 A.3d 512 (Pa.Super. 2021) (en banc), “a court does not have

authority to revoke a defendant’s consecutive term of probation for offending

conduct occurring during the parole sentence before the term of probation has

begun.” PCRA Petition, filed 5/12/22, at ¶ 7. Wells claimed the unknown facts

time-bar exception under Section 9545(b)(1)(ii), noting that “Simmons was

issued on August 18, 2021[.]” See id. at ¶ 8.

The PCRA court issued a Rule 907 notice of its intent to dismiss the

petition without a hearing. The court explained that judicial decisions are not

“new facts[.]” Rule 907 Notice, filed 8/29/22, at ¶ 21. The court also

determined that Simmons was not “a United States or Pennsylvania Supreme

Court case recognizing a new right and held to be retroactive.” Id. at ¶ 23.

The PCRA court ultimately dismissed Wells’ petition, and this timely appeal

followed.

Wells raises the following issue: “Did the PCRA court err in determining

that [Wells’] PCRA petition was untimely and [Wells] was not entitled to relief

under Commonwealth v. Simmons, 262 A.3d 512 (Pa.Super. 2021)?” Wells’

Br. at 2. ____________________________________________

at ¶ 4 n.1 (“This revocation sentence was ordered to run consecutively to a sentence of 5 to 10 years of incarceration plus 5 years of probation for robbery, a first- degree felony, imposed on docket number CP-23-CR- 0006352-2009 on July 27, 2010”).

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When reviewing the denial of PCRA relief, we determine whether the

ruling of the PCRA court is supported by the record and free of legal error.

See Commonwealth v. Dozier, 208 A.3d 1101, 1103 (Pa.Super. 2019).

Where a question of law is raised, our standard of review is de novo and our

scope of review plenary. Id.

We do not address the merits of Wells’ claim because his petition is

untimely. “The timeliness of a post-conviction petition is jurisdictional.”

Commonwealth v. Furgess, 149 A.3d 90, 92 (Pa.Super. 2016). Any PCRA

petition must be filed within one year after the judgment of sentence is final

“unless the petition alleges and the petitioner proves” an exception to the one-

year deadline. 42 Pa.C.S.A. § 9545(b)(1); see Commonwealth v. Staton,

184 A.3d 949, 954 n.4 (Pa. 2018). A judgment of sentence is 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 time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3).

The time-bar exceptions are:

(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;

(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

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provided in this section and has been held by that court to apply retroactively.

Id. at § 9545(b)(1)(i)-(iii).

Here, the PCRA court properly dismissed Wells’ petition as untimely.

Wells’ judgment of sentence became final on July 27, 2011. Therefore, the

instant PCRA petition filed in 2022 was untimely unless Wells pleaded and

proved an exception. In his PCRA petition, Wells claimed that he satisfied the

unknown facts exception, namely the issuance of the Simmons case. See id.

at § 9545(b)(1)(ii). However, “subsequent decisional law does not amount to

a new ‘fact’ under section 9545(b)(1)(ii) of the PCRA.” Commonwealth v.

Watts, 23 A.3d 980, 987 (Pa. 2011). Furthermore, though Wells challenges

the legality of the sentence, a PCRA petition raising such a claim is still subject

to the PCRA’s time restrictions. See Commonwealth v. Fowler, 930 A.2d

586, 592 (Pa.Super. 2007) (“[A]lthough legality of sentence is always subject

to review within the PCRA, claims must still first satisfy the PCRA’s time limits

or one of the exceptions thereto” (citation omitted)).

In his reply brief, Wells maintains he satisfied the new constitutional

right exception under Section 9545(b)(1)(iii) based on Commonwealth v.

Rosario, 294 A.3d 338 (Pa. 2023). The Rosario Court held that “the

anticipatory revocation of a probation sentence that has yet to start is illegal

under Pennsylvania law.” 294 A.3d at 356. Wells maintains that the Rosario

decision “should apply retroactively to [his] case[.]” Wells’ Reply Br. at 1, 2.

To satisfy the new constitutional right time-bar exception, a petitioner

must plead and prove that: 1) “there is a ‘new’ constitutional right” recognized

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by either the Pennsylvania Supreme Court or the United States Supreme

Court; and 2) “the right ‘had been held’ by that court to apply retroactively.”

Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002).

Here, Wells raised the “new constitutional right” for the first time in his

reply brief in this Court. He did not mention it in his PCRA petition. It is

therefore waived. See Pa.R.A.P. 302(a); 42 Pa.C.S.A. § 9545(b)(1);

Commonwealth v. Crews, 863 A.2d 498, 501 (Pa. 2004) (“The [PCRA]

makes clear that where, as here, the petition is untimely, it is the petitioner’s

burden to plead in the petition and prove that one of the exceptions applies”

(cleaned up)). Moreover, Rosario has not been held to apply retroactively.

The PCRA court committed no error in dismissing Wells’ petition as untimely.

Order affirmed.

Date: 11/20/2023

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