J-S17022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 JEROME SMITH                            :
                                         :
                   Appellant             :   No. 878 EDA 2018

                Appeal from the PCRA Order March 2, 2018
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0811161-2005


BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                            FILED APRIL 26, 2019

     Appellant, Jerome Smith, appeals pro se from the order entered on

March 2, 2018, dismissing as untimely his second petition filed pursuant to

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

     We briefly summarize the facts and procedural of this case as follows.

On July 31, 2006, a jury found Appellant guilty of first-degree murder and

possessing an instrument of crime. On the same day, the trial court sentenced

Appellant to a mandatory term of life imprisonment for first-degree murder,

with a concurrent term of one to five years of imprisonment for possessing an

instrument of crime. This Court affirmed Appellant’s judgment of sentence

and our Supreme Court denied further review.       See Commonwealth v.

Smith, 953 A.2d 839 (Pa. Super. 2008) (unpublished memorandum), appeal

denied, 960 A.2d 839 (Pa. 2008). On March 30, 2009, Appellant filed a timely

PCRA petition. The PCRA court appointed counsel who filed an amended PCRA
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petition. The PCRA court denied relief on the amended petition on April 23,

2010. Thereafter, following a convoluted procedural history not relevant to

the current appeal, our Court affirmed the PCRA court’s dismissal of

Appellant’s 2009 PCRA petition on June 28, 2012. See Commonwealth v.

Smith, 53 A.3d 943 (Pa. Super. 2012) (unpublished memorandum).                 Our

Supreme Court denied further review. See Commonwealth v. Smith, 57

A.3d 70 (Pa. 2012).

       On November 27, 2017, Appellant, acting pro se, filed his second PCRA

petition.   On February 2, 2018, the PCRA court issued notice, pursuant to

Pa.R.Crim.P. 907, of its intent to dismiss Appellant’s petition without a

hearing. The PCRA court deemed the petition untimely and cited Appellant’s

failure to satisfy an exception to the PCRA’s timeliness requirements as set

forth at 42 Pa.C.S.A. § 9545(b)(1).            Appellant filed a pro se response on

February 21, 2018. On March 2, 2018, the PCRA court dismissed Appellant’s

PCRA petition as untimely. This appeal resulted.1

       On appeal, Appellant presents the following issues,2 pro se, for our

review:


____________________________________________


1  Appellant filed a pro se notice of appeal on March 20, 2018. The PCRA
court ordered Appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b) on March 27, 2018. Appellant complied
timely. On July 17, 2018, the PCRA court issued an opinion pursuant to
Pa.R.A.P. 1925(a).

2   We have revised Appellant’s second issue for clarity.



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       1. Whether the PCRA court erred when [it] ruled that Appellant’s
          PCRA petition was untimely?

       2. Whether the PCRA court erred when it determined trial counsel
          did not provide ineffective assistance for not objecting to the
          trial court’s failure to follow the sentencing procedure outlined
          under 42 Pa.C.S.A. § 9711(a)(1)?3

Appellant’s Brief at 3.

       Appellant first claims that the trial court erred by dismissing his most

recent PCRA petition as untimely because he raised the “newly-discovered

fact” exception to the PCRA’s one year jurisdictional time requirement. Id. at

6.   In his second issue presented, Appellant claims that trial counsel was

ineffective for failing to object to the trial court’s imposition of life

imprisonment without a jury determination at the penalty phase pursuant to

42 Pa.C.S.A. § 9711(a)(1). Id. at 8. As such, Appellant claims “the trial judge

usurped authority from the jury to determine the penalty and [] trial counsel

failed to register an objection which constitutes a miscarriage of justice.” Id.

Appellant maintains that he learned of his claim “[o]n November 22, 2017,

[when he] attended a PCRA class [in prison] where [he] learned that trial

counsel provided deficient performance[.]” Id. at 4.

       When reviewing the denial of a PCRA petition, our standard of review is

limited to

____________________________________________


3 Section 9711(a)(1) provides that “[a]fter a verdict of murder of the first[-]
degree is recorded and before the jury is discharged, the court shall conduct
a separate sentencing hearing in which the jury shall determine whether the
defendant shall be sentenced to death or life imprisonment.” 42 Pa.C.S.A.
§ 9711(a)(1). Section 9711 was enacted in 1974 and was most recently
amended in 1999.

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       whether the PCRA court's determination is supported by evidence
       of record and whether it is free of legal error. When reviewing the
       denial of a PCRA petition without an evidentiary hearing, we
       determine whether the PCRA court erred in concluding that there
       were no genuine issues of material fact and in denying relief
       without an evidentiary hearing. When there are no disputed
       factual issues, an evidentiary hearing is not required. We review
       the PCRA court's legal conclusions de novo.

       The newly discovered facts exception, Section 9545(b)(1)(ii),
       relates to whether a court has jurisdiction to consider
       an untimely petition.[4] It does not require a merits analysis. A
       petitioner satisfies the newly discovered facts exception when the
       petitioner pleads and proves that (1) the facts upon which the
       claim is predicated were unknown and (2) could not have been
       ascertained by the exercise of due diligence. Due diligence
       requires reasonable efforts by a petitioner, based on the particular
       circumstances, to uncover facts that may support a claim for
       collateral relief, but does not require perfect vigilance or
       punctilious care.

Commonwealth v. Hart, 199 A.3d 475, 481 (Pa. Super. 2018) (internal

citations, quotations. brackets, and ellipses omitted; emphasis in original).

       In this case, Appellant contends that he recently discovered statutory

law, applicable at the time of his trial, to support a current claim of ineffective

assistance of counsel. Specifically, Appellant claims that trial counsel provided

ineffective assistance of counsel when he failed to object to the trial court’s

imposition of life imprisonment without first requiring the jury to decide

whether to apply a death sentence or life imprisonment as set forth at Section
____________________________________________


4   All PCRA petitions, “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” one of the three enumerated exceptions.
42 Pa.C.S.A. § 9545(b)(1). Here, there is no dispute that Appellant’s
judgment of sentence became final in 2009. Thus, his current PCRA petition
filed in November 2017 is patently untimely.

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9711(a)(1). The timeliness exception under section 9545(b)(1)(ii), however,

relates to the discovery of facts previously unknown to a petitioner, but not to

the subsequent discovery of extant law applicable at the time of trial.

Regarding section 9545(b)(1)(ii), our Supreme Court previously determined:

       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.

Commonwealth v. Watts, 23 A.3d 980, 986-987 (Pa. 2011). The Watts

Court ultimately held that “decisional law[5] does not amount to a new ‘fact’

under section 9545(b)(1)(ii) of the PCRA.” Watts, 23 A.3d at 987. Here,

Appellant seeks to litigate an ineffective assistance claim and asserts that a

timeliness exception applies because he recently learned about section

9711(a)(1). Appellant’s discovery, however, did not reveal a new “fact” within

the meaning of section 9545(b)(1)(ii). Moreover, as set forth above, section

9711 was enacted in 1974 and last amended in 1999. As such, the law was

in effect at the time of Appellant’s trial and his current claim could have been

ascertained earlier through the exercise of due diligence.             Accordingly,

Appellant failed to plead and prove an exception to the PCRA’s one-year

jurisdictional time requirement.         Because there were no disputed factual

____________________________________________


5  While cases cited by the trial court and the Commonwealth deal with
whether decisional law constitutes a “fact” under section 9545(b)(1)(ii),
obviously statutory law falls under the same definition as established in
Watts.

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issues, an evidentiary hearing was not required.    Hence, the PCRA court

properly dismissed Appellant’s PCRA petition without a hearing.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/26/19




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