J-S66043-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    SHANE CODY HACKWORTH,

                             Appellant                No. 743 WDA 2017


                  Appeal from the PCRA Order March 10, 2017
                  in the Court of Common Pleas of Erie County
               Criminal Division at No.: CP-25-CR-0000253-2009


BEFORE: BENDER, P.J.E., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED DECEMBER 19, 2017

        Appellant, Shane Cody Hackworth, appeals, pro se, from the order of

March 10, 2017, dismissing, without a hearing, his first petition filed pursuant

to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Because

the petition is untimely without applicable exception, we affirm.

        We take the underlying facts and procedural history in this matter from

our independent review of the certified record. On February 19, 2009, the

Commonwealth filed a criminal information charging Appellant with possession

with intent to deliver and related offenses. Appellant entered an open guilty

plea to one count each of possession with intent to deliver and possession of



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*   Retired Senior Judge assigned to the Superior Court.
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drug paraphernalia on May 5, 2009. On July 9, 2009, the trial court sentenced

Appellant to an aggregate term of incarceration of not less than twelve nor

more than twenty-four months. Appellant did not file a direct appeal.

       On December 15, 2016, Appellant, acting pro se filed a motion to

terminate sentence.        On January 9, 2017, the PCRA court filed an order

deeming Appellant’s filing to be a PCRA petition and appointing counsel. On

February 6, 2017, appointed counsel filed a motion to withdraw in the PCRA

court, together with a Turner/Finley letter.1 On February 17, 2017, the PCRA

court issued notice of its intent to dismiss the petition pursuant to

Pennsylvania Rule of Criminal Procedure 907. See Pa.R.Crim.P. 907(1). That

same day, the PCRA court issued an order granting counsel’s motion to

withdraw.     On March 10, 2017, the PCRA court dismissed the petition as

untimely. The instant, timely appeal followed. The PCRA court did not order

Appellant to file a concise statement of errors complained of on appeal. See

Pa.R.A.P. 1925(b). Nevertheless, Appellant filed a Rule 1925(b) statement.

See id. On June 13, 2017, the PCRA court issued an opinion referencing its

opinion of February 17, 2017. See Pa.R.A.P. 1925(a).

       On appeal, Appellant raises the following questions for our review:

       1) Was the Appellant prejudiced by the Commonwealth by [sic]
       the untimely delay in charging the Appellant for (2) months while
       the Appellant was held in custody?
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1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).


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      2) Did the probation officer go beyond their [sic] duties and
      conduct an illegal search to circumvent the search warrant
      requirement by acting as police officers “stalking horses/switching
      hats”?

      3) Was Appellant’s previous counsel ineffective for not filing pre[-
      ] trial and post[-]trial motions?

      4) Was Appellant[’]s counsel, [] who was appointed by the Erie
      County courts to represent Appellant on this case, on the recent
      motions, ineffective for not acknowledging the errors of law[?]

(Appellant’s Brief, at 2-3) (unnecessary capitalization omitted).

      Appellant appeals from the dismissal of his PCRA petition. To be eligible

for relief pursuant to the PCRA, Appellant must establish that his conviction or

sentence resulted from one or more of the enumerated errors or defects found

in 42 Pa.C.S.A. § 9543(a)(2). Our standard of review for an order denying

PCRA relief is well settled:

             This Court’s standard of review regarding a PCRA court’s
      order is whether the determination of the PCRA court is supported
      by the evidence of record and is free of legal error. Great
      deference is granted to the findings of the PCRA court, and these
      findings will not be disturbed unless they have no support in the
      certified record.

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations

and quotation marks omitted). However, “if a PCRA [p]etition is untimely, a

trial court has no jurisdiction to entertain the petition.” Commonwealth v.

Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted).

      In the instant matter, Appellant filed his PCRA petition on December 15,

2016. The PCRA provides that “[a]ny petition under this subchapter, including


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a second or subsequent petition, shall be filed within one year of the date the

judgment becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1). A judgment becomes

final for PCRA purposes “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).

        Here, Appellant’s      sentence        became   final on   August   10, 2009,

approximately thirty days2 after the trial court imposed sentence and

Appellant did not file a direct appeal with this Court.            See id.; Pa.R.A.P.

903(a). Therefore, Appellant had one year, until August 10, 2010, to file a

timely PCRA petition.         Because Appellant did not file this petition until

December 15, 2016, the petition is facially untimely. Thus, to obtain PCRA

relief, he must plead and prove that his claim falls under one of the statutory

exceptions to the one-year time bar provided at section 9545(b).              See 42

Pa.C.S.A. § 9545(b)(1)(i)-(iii).

        Section 9545 provides that the court can still consider an untimely

petition where the petitioner successfully pleads and 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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2   The thirtieth day, August 8, 2009, was a Saturday.

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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.

Id.

      Further, a petitioner who wishes to invoke any of the above exceptions

must file the petition “within 60 days of the date the claim could have been

presented.”   Id. at § 9545(b)(2).     The Pennsylvania Supreme Court has

repeatedly stated that it is an appellant’s burden to plead and prove that one

of the above-enumerated exceptions applies. See, e.g., Commonwealth v.

Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008), cert. denied, 555 U.S. 916

(2008).

      Here, in his PCRA petition, Appellant contends that he qualifies under

the newly discovered facts exception. (See PCRA Petition, 12/15/16, at 2).

Appellant’s “fact” consists of the fact that he recently had other inmates

assisting him in the law library, and that research led him to the conclusion

that his conviction was illegal. (See Motion for Reconsideration, 2/27/17, at

1-2). However, subsequent research revealing decisional law is not a new

“fact” under section 9545(b)(1)(ii) of the PCRA.     See Commonwealth v.

Brandon, 51 A.3d 231, 234-35 (Pa. Super. 2012). As our Supreme Court

has stated:




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             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
      according to or in contravention of the rule. 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.         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.

 Commonwealth v. Watts, 23 A.3d 980, 986-87 (Pa. 2011) (citations, some

 quotations, and some punctuation omitted). Thus, Appellant is not entitled

 to relief because his finding new legal theories after doing research was not

 an “event that spawned a new claim.” Id. at 987.

      Therefore, because the record demonstrates that Appellant’s PCRA

petition is untimely with none of the statutory exceptions to the time bar

proven, we affirm the order of the court dismissing Appellant’s PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2017




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