J-S65037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

GREGORY LEE WILSON,

                            Appellant                  No. 339 WDA 2016


                  Appeal from the PCRA Order October 2, 2015
                in the Court of Common Pleas of Warren County
               Criminal Division at No.: CP-62-CR-0000043-2010


BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                   FILED: September 23, 2016

        Appellant, Gregory Lee Wilson, appeals, pro se, from the order of

October 2, 2015, dismissing, without a hearing, his serial 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.

        In an earlier appeal, the trial court summarized the factual and initial

procedural history of this case as follows:

             The Commonwealth charged [Appellant] at Warren County
        docket number CR 43 of 2010 with one (1) count of [f]ailure to
        [c]omply   with  [r]egistration  of   [s]exual    [o]ffenders


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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       [r]equirements,[1] and at docket number CR 117 of 2010 with
       two [] counts [of p]ossession with [i]ntent to [d]eliver [a
       controlled substance], four [] counts [of c]riminal [u]se of a
       [c]ommunications [f]acility, and one [] count [of p]ossession []
       [s]mall [a]mount of [m]arijuana. On March 29, 2010, [Appellant
       pleaded] guilty to one [] count [of f]ailure to [c]omply with
       [r]egistration of [s]exual [o]ffenders [r]equirement[s] at docket
       number CR 43 of 2010 and one [] count [of p]ossession with
       [i]ntent to [d]eliver [a controlled substance] at docket number
       CR 117 of 2010. The [Commonwealth] moved to nolle prosqui
       [sic] the remaining charges. [On April 19, 2010, the trial court]
       sentenced [Appellant to an aggregate term of incarceration of
       not less than fifty months nor more than one hundred twenty
       months].

             [Appellant] filed a [m]otion for [r]econsideration of
       [s]entence which [the trial court] denied on May 14, 2010. . . .

(Trial Court Opinion, 4/15/14, at 1) (quotation marks omitted).

       Appellant did not file a direct appeal.         However, subsequently,

Appellant filed several unsuccessful PCRA petitions.

       On March 18, 2015, Appellant, acting pro se, filed the instant PCRA

petition. On September 9, 2015,2 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).           On October 2, 2015, the PCRA court

dismissed the petition as untimely. The instant, timely appeal followed. On
____________________________________________


1
  In 1989, Appellant was convicted of rape and related sexual offenses.
Thus, he was subject to lifetime sexual offender registration.    (See
Commonwealth’s Brief, at 5, 10, 12).
2
   It appears that during the pendency of the instant PCRA petition, Appellant
filed a motion to compel the PCRA court to act on the petition with this
Court. On August 27, 2015, this Court directed the PCRA court to act on the
petition within sixty days.



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November 6, 2015, the PCRA court ordered Appellant to file a concise

statement of errors complained of on appeal. See Pa.R.A.P. 1925(b). This

Court has been unable to locate Appellant’s Rule 1925(b) statement.

However, on March 1, 2016, the PCRA court issued an opinion, which

specifically references such a statement and does not describe it as

untimely, so we will deem it filed timely. (see Trial Court Opinion, 3/01/15,

at unnumbered page 1); see also Pa.R.A.P. 1925(a).

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

      1. Whether [A]ppellant’s conviction was under    2004 Pa. Laws §
      [] 1243, No. 152 (Act 152) in [sic] opposed to   Act 178 of 2006;
      whereas, Appellant maxed out his term prior to   the enactment of
      Act 178, Act 152 of 2004 was deemed               unconstitutional
      December 16, 2013?

      2. Whether newly discovered information and/or evidence must
      be filed within sixty days [Appellant] came into knowledge of the
      newly discovered information and/or evidence pursuant to § []
      9545 [sic]?

(Appellant’s Brief, at 3).

      Appellant appeals from the denial of his serial 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


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        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 March 18,

2015.     The PCRA provides that “[a]ny petition under this subchapter,

including 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 June 13, 2010, thirty days

after the trial court denied his motion for reconsideration of 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 June 13, 2011, to file a

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

18, 2015, 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).

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      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;

            (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, Appellant contends that he qualifies under the newly discovered

facts exception. (See Appellant’s Brief, at 7). However, Appellant’s “fact”

consists of the Pennsylvania Supreme Court’s decision in Commonwealth

v. Neiman, 84 A.3d 603 (Pa. 2013), which declared Act 152, which included

the relevant Megan’s Law III provisions, unconstitutional. (See id. at 6-7).

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     It is well-settled that a new judicial opinion does not constitute a newly

discovered fact for purposes of 42 Pa.C.S.A. § 9545(b)(1)(ii).                 See

Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011).               In fact, “[o]ur

Courts have expressly rejected the notion that judicial decisions can be

considered newly-discovered facts which would invoke the protections

afforded by section 9545(b)(1)(ii).” Commonwealth v. Cintora, 69 A.3d

759, 763 (Pa. Super. 2013), appeal denied, 81 A.3d 75 (Pa. 2013) (citations

omitted).   In Watts, our Supreme Court stated:

     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.

Watts, supra at 986-87 (some quotation marks and citations omitted).

Thus, the Pennsylvania Supreme Court’s decision in Neiman cannot

constitute a newly discovered fact.     See Watts, supra at 987; Cintora,

supra at 763.

     Moreover, even if we were to hold that the Neiman decision

constituted a newly discovered fact, Appellant’s claim would fail because he

did not file the instant PCRA petition “within 60 days of the date the claim

could have been presented.”     42 Pa.C.S.A. § 9545(b)(2).       To comply with


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the sixty-day requirement, Appellant had to file his petitions within sixty

days from the date of the court’s decision, not sixty days from the date he

became aware of the decision.              See Cintora, supra at 763-64.   The

Pennsylvania Supreme Court’s filed its decision in Neiman on December 16,

2013. Appellant filed his petition on March 18, 2015, over one year later.

Thus, the petition was untimely on this basis as well.

       Therefore, because the record demonstrates that Appellant’s PCRA

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

proven,3 we affirm the order of the trial court dismissing Appellant’s serial

PCRA petition.

       Order affirmed.




____________________________________________


3
   Even if Appellant had attempted to claim an exception under §
9545(b)(1)(iii) and had brought his claim within sixty days of the Neiman
decision, his claim would have failed because he has not proven that a
“constitutional right” recognized in Neiman “has been held by [our Supreme
Court] to apply retroactively.” 42 Pa.C.S.A. § 9545(b)(1)(iii). Our review of
Neiman confirms that our Supreme Court did not direct that the decision
was to apply retroactively. Moreover, the Neiman decision did not discuss
the effects of its ruling on cases that had become final before it was decided.
Thus, it cannot be said that the right asserted by Appellant “has been held
by [our Supreme Court] to apply retroactively.”               42 Pa.C.S.A. §
9545(b)(1)(iii). Therefore, Appellant has not met the requirements of
Section 9545(b)(1)(iii).




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/23/2016




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