J-S16014-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

KYLAND WILLIAM NAPPER

                            Appellant                  No. 724 WDA 2016


                    Appeal from the PCRA Order April 19, 2016
                In the Court of Common Pleas of Allegheny County
               Criminal Division at No(s): CP-02-CR-0010388-2012
                                           CP-02-CR-0016131-2013


BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY MOULTON, J.:                           FILED AUGUST 22, 2017

       Kyland William Napper appeals from the April 19, 2016 order of the

Allegheny County Court of Common Pleas dismissing as untimely his petition

filed under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-46. Because

we conclude that the PCRA court erred in dismissing Napper’s petition as

untimely, we reverse and remand.

       On June 30, 2014, Napper entered negotiated guilty pleas in five

separate cases, two of which are the subject of this appeal. In case number

CP-02-CR-0010388-2012, Napper pled guilty to two counts of possession of

a controlled substance with intent to deliver (“PWID”), two counts of

possession of a controlled substance, one count of possession of drug
____________________________________________


       *
           Retired Senior Judge assigned to the Superior Court.
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paraphernalia, one count of receiving stolen property, and one count of

criminal conspiracy.1 In case number CP-02-CR-0016131-2013, Napper pled

guilty to two counts of delivery of a controlled substance and two counts of

PWID.2

       At sentencing, the parties and the trial court discussed on the record

Napper’s eligibility for a recidivism risk reduction incentive (“RRRI”)

sentence. At the time, Napper was awaiting trial in Westmoreland County

on drug-related offenses, including one count of drug delivery resulting in

death, 18 Pa.C.S. § 2506(a).            The Commonwealth argued that because

Napper was awaiting prosecution in the Westmoreland County case, he was

ineligible for RRRI under 61 Pa.C.S. § 4503.3        The trial court agreed and
____________________________________________


       1
       35 P.S. §§ 780-113(a)(30), 780-113(a)(16), and 780-113(a)(32), 18
Pa.C.S. §§ 3925(a) and 903(a)(1), respectively.
       2
           35 P.S. §§ 780-113(a)(16) and 780-113(a)(30), respectively.
       3
        Section 4503 of the Prisons and Parole Code defines “[e]ligible
offender” for purposes of RRRI, in relevant part, as follows:

            A defendant or inmate convicted of a criminal offense who
            will be committed to the custody of the [D]epartment [of
            Corrections] and who . . . [i]s not awaiting trial or
            sentencing for additional criminal charges, if a
            conviction or sentence on the additional charges would
            cause the defendant to become ineligible under this
            definition.

61 Pa.C.S. § 4503 (emphasis added). At sentencing, the Commonwealth
stated that if Napper were convicted of drug delivery resulting in death in
Westmoreland County, that conviction would render him ineligible for RRRI.
N.T., 6/30/14, at 27.



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determined that Napper was ineligible for RRRI.      The following exchange

then occurred:

        [DEFENSE COUNSEL]: Your Honor, just so that I am clear,
        you may or may not know the answer to this, if he’s
        deemed ineligible at this point, if his other case is resolved
        in a manner where that charge no longer exists, does it
        then come back before Your Honor for purposes of
        determining his eligibility at that point?

        THE COURT: It’s my understanding, although I don’t want
        to make any promises, it’s my understanding that should
        the –

                                     ...

        THE COURT: – should the case that we’re discussing
        involving the drug overdose death be resolved in a way
        that would make him – that would not exclude him from
        RRRI eligibility, I would then either by the State Parole
        Board be notified by letter of his – of their understanding
        of his eligibility or counsel, any of the three of you could
        raise that issue before me and then I would –

        [DEFENSE COUNSEL]: We haven’t lost that, considering
        that’s going to be farther out obviously from ten days of
        today’s date.

        THE COURT: Correct. That is – correcting sentences is
        always – it’s not subject to the ten-day rule.

        [DEFENSE COUNSEL]: Okay, thank you.

        THE COURT: Correcting a sentence is always something I
        can do on a motion of counsel. So to the extent that
        [Napper] later becomes RRRI eligible, I would reconsider
        that and impose the RRRI minimum. Today, I do not
        believe he is, and I will not sentence him to a[n] RRRI
        minimum.




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N.T., 6/30/14, at 29-30.     At the conclusion of the hearing, the trial court

sentenced Napper to an aggregate term of 5 to 10 years’ incarceration in

case numbers CP-02-CR-0010388-2012 and CP-02-CR-0016131-2013.

      On September 17, 2015, a jury acquitted Napper of all charges in the

Westmoreland County case. On November 13, 2015, Napper filed a motion

to correct sentence in case numbers CP-02-CR-0010388-2012 and CP-02-

CR-0016131-2013, asking the trial court to amend Napper’s sentence to

include the RRRI minimum due to his acquittal in the Westmoreland County

case. The trial court denied the motion on November 30, 2015, concluding

that it lacked jurisdiction to modify Napper’s sentence.

      On December 11, 2015, Napper filed a motion for reconsideration,

asking the trial court to treat his prior motion as a first PCRA petition and to

amend his sentence to include the RRRI minimum. On December 17, 2015,

the PCRA court granted reconsideration, converted Napper’s motion into a

PCRA petition, and ordered the Commonwealth to file a response. On March

16, 2016, after receiving the Commonwealth’s response, the PCRA court

issued notice of its intent to dismiss the PCRA petition as untimely. On April

19, 2016, the PCRA court entered an order dismissing Napper’s PCRA

petition.

      On appeal, Napper raises the following issues:
            I. Was Mr. Napper’s PCRA petition timely filed since he
            pleaded and proved an exception to the PCRA?

            II. Is Mr. Napper currently serving an illegal sentence
            since he is eligible for RRRI sentencing?


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Napper’s Br. at 4 (full capitalization omitted).

      Our review of an order denying PCRA relief is limited to determining

“whether the decision of the PCRA court is supported by the evidence of

record and is free of legal error.” Commonwealth v. Melendez-Negron,

123 A.3d 1087, 1090 (Pa.Super. 2015). We will not disturb the PCRA court’s

factual findings “unless there is no support for [those] findings in the

certified record.” Id.

      We must first address the timeliness of Napper’s PCRA petition, which

is a jurisdictional requisite. See Commonwealth v. Brown, 111 A.3d 171,

175 (Pa.Super.), app. denied, 125 A.3d 1197 (Pa. 2015). In the absence of

an applicable exception, a petitioner must file a PCRA petition, including a

second or subsequent petition, within one year of the date his or her

judgment of sentence becomes final.         42 Pa.C.S. § 9545(b)(1).     Here,

Napper did not file a direct appeal from his judgment of sentence, so his

judgment of sentence became final 30 days later, on July 30, 2014. See 42

Pa.C.S. § 9545(b)(3).     He had one year from that date, or until July 30,

2015, to file a timely PCRA petition. Thus, the instant PCRA petition, filed on

November 13, 2015, was facially untimely.

      To overcome the time bar, Napper was required to plead and prove

one of the following exceptions: (i) unconstitutional interference by

government officials; (ii) newly discovered facts that could not have been

previously ascertained with due diligence; or (iii) a newly recognized

constitutional right that has been held to apply retroactively.        See 42

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Pa.C.S. § 9545(b)(1)(i)-(iii).    To invoke one of these exceptions, Napper

must have filed his petition within 60 days of the date the claim could have

been presented. See 42 Pa.C.S. § 9545(b)(2).

      In his PCRA petition, Napper asserted the new-facts exception to the

one-year time bar. Specifically, Napper averred:
           24. The “new fact” alleged by Mr. Napper is that, [in the
           Westmoreland County case], the jury found him not guilty
           of Drug Delivery Resulting in Death, the charge that
           initially made him ineligible to receive a[n] RRRI minimum
           sentence.

           25. This fact was unknown to [Napper] until September
           17, 2015, when the jury rendered its verdict.

           26. Mr. Napper diligently filed the instant PCRA petition on
           November 13, 2015, which was within 60 days of the date
           the claim could have been presented.

Mot. to Reconsider, 12/11/15, ¶¶ 24-26. The PCRA court, however, rejected

this claim.     The PCRA court determined that Napper’s acquittal in the

Westmoreland County case was not a new fact under section 9545(b)(1)(ii)

of the PCRA. Citing Commonwealth v. Watts, 23 A.3d 980 (Pa. 2011), the

PCRA court concluded that Napper’s acquittal was subsequent decisional law

and, thus, “not a fact for PCRA purposes.”           Opinion, 11/21/16, at 4

(“1925(a) Op.”). We disagree.

      The Pennsylvania Supreme Court has explained the difference between

“law” and “fact” for purposes of section 9545(b)(1)(ii) of the PCRA as

follows:
           Black’s Law Dictionary explains the distinction thusly: “Law
           is a principle; fact is an event. Law is conceived; fact is
           actual. Law is a rule of duty; fact is that which has been

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         according to or in contravention of the rule.” Black’s Law
         Dictionary 592 (6th ed. 1991). Put another way, “A ‘fact,’
         as distinguished from the ‘law,’ . . . [is that which] is to be
         presumed or proved to be or not to be for the purpose of
         applying or refusing to apply a rule of law.”               Id.
         Consistent with these definitions, an in-court ruling or
         published judicial opinion is law, for it is simply the
         embodiment of abstract principles applied to actual events.
         The events that prompted the analysis, which must be
         established by presumption or evidence, are regarded as
         fact.

Watts, 23 A.3d at 986-87.         The Supreme Court ultimately held “that

subsequent decisional law does not amount to a new ‘fact’ under section

9545(b)(1)(ii) of the PCRA.” Id. at 987.

      We agree with Napper that his acquittal in the Westmoreland County

case was not subsequent decisional law but a new fact under section

9545(b)(1)(ii). Under Watts, the acquittal was neither a “principle” nor a

“rule of duty”; rather, it was an “event” previously unknown to Napper that

could not have been ascertained earlier by the exercise of due diligence.

See Commonwealth v. Bennett, 930 A.2d 1264, 1270 (Pa. 2007) (stating

that section 9545(b)(1)(ii) “simply requires [the] petitioner to allege and

prove that there were ‘facts’ that were ‘unknown’ to him and that he

exercised ‘due diligence’”) (quoting 42 Pa.C.S. § 9545(b)(1)(ii)). Moreover,

the acquittal itself is the basis of Napper’s claim for PCRA relief. His petition

was not predicated on a change in decisional law or a legal principle, but on

the fact of his acquittal.   As the Watts Court stated, “[t]he events that

prompted the [legal] analysis, which must be established by presumption or

evidence, are regarded as fact.” 23 A.3d at 987; see also Commonwealth


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v. Crews, 863 A.2d 498, 502 (Pa. 2004) (“[T]he ‘facts’ of which the

exception speaks are those on which the PCRA claims are based.”).

      Having determined that Napper’s acquittal in the Westmoreland

County case constitutes a new fact under section 9545(b)(1)(ii), we must

determine whether Napper filed his PCRA petition with 60 days of the date

the claim could have been raised under section 9545(b)(2).        Napper was

acquitted in Westmoreland County on September 17, 2015, and he filed his

PCRA petition 57 days later, on November 13, 2015.        Therefore, Napper’s

petition was timely filed.

      Next, we turn to the merits of Napper’s PCRA petition. Napper asserts

that the only reason he was deemed ineligible for an RRRI sentence was that

he was awaiting prosecution on the charge of drug delivery resulting in

death in Westmoreland County. Because he was acquitted of that charge,

Napper asserts that he is now eligible for an RRRI sentence, as the trial

court indicated at the time of his initial sentencing. Napper averred:
         7. At the time of sentencing on June 30, 2014, discussion
         was placed on the record as to [Napper’s] eligibility for a[n
         RRRI] Sentence . . . .

         8. At the time of sentencing [Napper] had an open case in
         Westmoreland County . . . where he was charged with
         Drug Delivery Resulting in Death.

         9. The State’s attorneys argued that this open case made
         him ineligible for a[n] RRRI sentence.

         10. The Cou[r]t indicated that if the case in Westmoreland
         County were resolved in a way that would not preclude
         [Napper] from a[n] RRRI sentence, that defense counsel
         could petition The Court requesting a[n] RRRI sentence.


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Mot. to Correct Sent., 11/13/15, ¶¶ 7-10.        Thus, Napper asked the PCRA

court to amend his sentence to include an RRRI sentence.

       In its opinion, the PCRA court acknowledged that Napper “would be

entitled to a[n] RRRI sentence if he was eligible for resentencing, as the

other criminal matter has been resolved.” 1925(a) Op. at 5 n.2. However,

the PCRA court expressly declined to address the merits of Napper’s petition.

Recognizing that the PCRA was Napper’s “only avenue for relief,” the PCRA

court concluded that Napper “was unable to establish an exception” to the

one-year time bar. Id.; see id. at 5 (“[T]his Court has no jurisdiction over

the substantive issues raised by [Napper].”).4

       Because we have concluded that Napper established an exception to

the one-year time bar, the PCRA court erred in dismissing his petition as

untimely.     Accordingly, we reverse and remand this matter to the PCRA

court for consideration of the merits of Napper’s PCRA petition.

       Order reversed.         Case remanded with instructions.    Jurisdiction

relinquished.



____________________________________________


       4
        On appeal, Napper also argues that his sentence is illegal, which the
PCRA court rejected in dictum. See Napper’s Br. at 4, 12; 1925(a) Op. at 5
n.2. However, Napper did not challenge the legality of his sentence in his
PCRA petition, so that claim was not properly before the PCRA court.
Rather, Napper merely averred that he is entitled to a corrected sentence
consistent with the trial court’s statements on the record at the time of
sentencing. See Mot. to Correct Sent., 11/13/15, ¶¶ 10, 12; Mot. to
Reconsider, 12/11/15, ¶¶ 5, 9, 28.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/22/2017




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