Com. v. Gearhart, T.

J-S13014-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

TIMOTHY R. GEARHART :

:

Appellant : No. 1163 MDA 2021

Appeal from the PCRA Order Entered August 13, 2021

In the Court of Common Pleas of Berks County

Criminal Division at No: CP-06-CR-0005239-2007

BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.: FILED MAY 10, 2022

Appellant, Timothy R. Gearhart, appeals pro se from the August 13,

2021 order entered in the Court of Common Pleas of Berks County dismissing

his petition for collateral relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.

The PCRA court summarized the relevant background as follows.

Appellant . . . entered a plea of guilty to Murder of the Third

Degree and Conspiracy to Commit Aggravated Assault and was

sentenced to not less than twenty years nor more than forty years

of incarceration in a State Correctional [Institution], followed by

twenty years of probation. The court also imposed costs, fines in

the amount $100 for each offense and restitution in the amount

of $19,550. Appellant filed post-sentence motions, which were

denied, and he thereafter appealed to the Superior Court. The

Superior Court affirmed Appellant’s judgment of sentence in its

October 9, 2009 memorandum opinion. Commonwealth v.

Gearhart, 1740 MDA 2009 (Pa. Super. Oct. 9, 2009).

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* Former Justice specially assigned to the Superior Court.

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On August 10, 2010, Appellant filed his first pro se PCRA petition

alleging abuse of discretion by [the trial court], ineffective

assistance of trial counsel and an unlawfully induced plea. [The

court] appointed PCRA counsel on August 11, 2010. PCRA counsel

filed a motion to withdraw on October 26, 2011, which [the court]

granted the next day. [The court] dismissed the first Petition on

December 5, 2011. Appellant appealed and the Superior Court

affirmed the dismissal in a memorandum decision on February 22,

2013.

On October 15, 2019, Appellant filed the instant pro se petition,

his second, pursuant to the PCRA, which was then docketed on

November 19, 2019. Appellant apparently recognized that his

second petition was untimely, but alleged that he was eligible for

an exception to the time bar pursuant to Section 9545(b)(1)(iii)

of the PCRA claiming that “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.” 42 Pa.C.S.A. § 9545. Appellant claimed that the

Pennsylvania Supreme Court’s recent holding in Commonwealth

v. Ford, 217 A.3d 824 (Pa. 2019), provided a “new rule of law” of

which he was entitled to obtain the benefit thereof, because, as

he alleged, the court imposed nonmandatory fines without

inquiring as to his ability to pay. Appellant based his claim of relief

on the Supreme Court’s holding in Ford that the imposition of a

non-mandatory fine without any evidence of a defendant’s ability

to pay such a fine, results in an illegal sentence. Ford, 217 A.3d

at 831.

On December 11, 2019, Appellant filed an amended petition again

asserting that he is due relief pursuant to Ford. However,

Appellant, in the amended petition, indicated that his assertion of

the court’s jurisdiction pursuant to Section 9545(b)(1)(iii) was

incorrect and that he [] was then invoking the jurisdiction of [the

PCRA court], as an exception to the time bar under the PCRA,

through the newly discovered facts exception under Pa.C.S.A.

§ 9545(b)(1)(iii). Appellant claimed that the “newly-discovered

fact” upon which he relies is “the Pennsylvania Supreme Court’s

first statutory interpretation of 42 Pa.C.S.[A.] § 9726.” Second

Am. Pet. ¶ 5.

[The PCRA court] filed [its] Notice of Intention to Dismiss pursuant

to Pa.R.Crim.P. 907 on May 21, 2020. As [the] Notice indicated,

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[the PCRA court found it did not have] jurisdiction to consider

Appellant’s claims raised in either his original petition, or in his

amended petition, because he failed to plead and prove that any

of the exceptions to the PCRA time bar set forth in Section

9545(b)(1) were applicable.

After several requests by Appellant for an extension to file a

response to [the] Notice, which [the court] granted, Appellant

filed his pro se “Defendant’s Objections to Notice of Intention of

Dismiss” on July 16, 2021. In his [filing], Appellant continued to

assert that he was eligible to raise an exception to the time bar

pursuant to section 9545(b)(1) under the newly-recognized right

exception and the previously-un[known] facts exception. Finding

that Appellant failed to assert any further basis for relief, or to

alert [the PCRA court] to any additional error upon which [the

court] could discern any potential amendment[, see]

Commonwealth v. Rykard, 55 A.3d 1177, 1189 (Pa. Super.

2012), [the court] proceeded to dismiss Appellant’s petition by

order dated August 13, 2021.

Appellant filed his Notice of Appeal on September 8, 2021. [The

PCRA court] issued a concise statement order on September 13,

2021[, which Appellant filed on September 21, 2021]. . . . On

September 29, 2021, Appellant filed a document entitled

“Petitioner’s Leave to Amend Concise Statement of Errors

Complained of on Appeal,” [which the PCRA court granted]. [This

appeal followed].

Statement in Lieu of Opinion, 11/5/21, at 1-3 (footnotes omitted; unnecessary

capitalization omitted).

Appellant raises several claims and sub-claims for our review. See

Appellant’s Brief at 3-4. However, Appellant’s argument can be summarized

as follows. Appellant is aware that his current PCRA petition is untimely. He

believes, however, that he is entitled to the application of Ford, and that

Ford makes the instant petition timely under the after-discovered new fact

and/or the newly-recognized constitutional right exception. Appellant also

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argues that due process/equal protection demand the application of Ford to

his matter, regardless of timeliness. Finally, Appellant asserts his sentence

violates Ford, which, in turns, makes his sentence illegal. We disagree.

“[A]n appellate court reviews the PCRA court’s findings of fact to

determine whether they are supported by the record, and reviews its

conclusions of law to determine whether they are free from legal error.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).

All PCRA petitions, “including a second or subsequent petition, shall be filed

within one year of the date the judgment becomes final” unless an exception

to timeliness applies. 42 Pa.C.S.A. § 9545(b)(1). “The PCRA’s time

restrictions are jurisdictional in nature. Thus, if a PCRA petition is untimely,

neither this Court nor the [PCRA] court has jurisdiction over the petition.

Without jurisdiction, we simply do not have the legal authority to address the

substantive claims.” Commonwealth v. (Frank) Chester, 895 A.2d 520,

522 (Pa. 2006) (internal citations and quotation marks omitted) (overruled

on other grounds by Commonwealth v. Small, 238 A.3d 1267 (Pa. 2020)).

As timeliness is separate and distinct from the merits of Appellant’s

underlying claims, we first determine whether this PCRA petition is timely

filed. Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008).

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As noted above, Appellant filed the instant petition on November 19,

2019, approximately ten years after his judgment of sentence became final.

As such, the instant petition is facially untimely.1

All PCRA petitions, “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). The one-year time limitation, however, can be overcome if a

petitioner (1) alleges and proves one of the three exceptions set forth in

Section 9545(b)(1)(i)-(iii) of the PCRA, and (2) files a petition raising this

exception within one year of the date the claim could have been presented.

42 Pa.C.S.A. § 9545(b)(2).2

As noted, the thrust of Appellant’s argument is that the Ford decision,

which Appellant alleges controls the instant appeal, meets the requirements

of the newly-discovered fact exception in Section 9545(b)(1)(ii) and the

newly-recognized constitutional right exception set forth in Section

9545(b)(1)(iii).

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1 The record reflects Appellant’s judgment of sentence became final on

November 9, 2009, at the expiration of the thirty-day period to file an appeal

with the Pennsylvania Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3);

Pa.R.A.P. 1113(a). Appellant had one year from November 9, 2009, to file a

timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). The instant petition,

which was filed in 2019, is therefore facially untimely.

2Section 9545(b)(2) was amended to enlarge the deadline from sixty days to

one year. The amendment applies only to claims arising on or after December

24, 2017.

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The newly-discovered fact exception requires a petitioner to plead and

prove two components: (1) the facts upon which the claim was predicated

were unknown, and (2) these unknown facts could not have been ascertained

by the exercise of due diligence. See Commonwealth v. Burton, 158 A.3d

618, 638 (Pa. 2017).

Ford is not a new “fact” for purposes of the newly-discovered fact

exception.3 See, e.g., Commonwealth v. Watts, 23 A.3d 980, 987 (Pa.

2011) (“subsequent decisional law does not amount to a new ‘fact’ under

section 9545(b)(1)(ii) of the PCRA); Commonwealth v. Reid, 235 A.3d

1124, 1148 (Pa. 2020) (same).

Foreseeing that the instant claim is barred under well-established

authorities, Appellant avers he is not arguing that Ford itself is a new fact.

Rather, the new “interpretation” of the relevant statute offered in Ford is the

new “fact.” Appellant’s Brief at 10. Appellant, however, confuses

the concepts of “law” and “fact.” 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 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.

Watts, 23 A.3d at 986-87.

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3 See also Commonwealth v. Brewer, 2022 WL 35476 (Pa. Super. filed

January 4, 2022).

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Accordingly, Appellant’s claim that Ford constitutes a newly-discovered

fact for purposes of PCRA is without merit. See Watts, supra; Reid, supra;

Brewer, supra.

Next, Appellant argues that Ford created a new constitutional right.

We disagree.

Subsection (iii) of Section 9545 has two requirements. First, it

provides that the right asserted is a constitutional right that was

recognized by the Supreme Court of the United States or [the

Pennsylvania Supreme Court] after the time provided in this

section. Second, it provides that the right “has been held” by

“that court” to apply retroactively. Thus, a petitioner must prove

that there is a “new” constitutional right and that the right “has

been held” by that court to apply retroactively. The language “has

been held” is in the past tense. These words mean that the action

has already occurred, i.e., “that court” has already held the new

constitutional right to be retroactive to cases on collateral review.

By employing the past tense in writing this provision, the

legislature clearly intended that the right was already recognized

at the time the petition was filed.

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

Regarding the scope of the constitutional right exception, in

Commonwealth v. Chambers, 35 A.3d 34 (Pa. Super. 2011), we noted:

For purposes of deciding whether the timeliness exception to the

PCRA based on the creation of a new constitutional right is

applicable, the distinction between the holding of a case and its

rationale is crucial since only a precise creation of a constitutional

right can afford a petitioner relief.... [T]he rationale used by the

Supreme Court is irrelevant to the evaluation of a § 9545(b)(1)(iii)

timeliness exception to the PCRA, as the right must be one that

has been expressly recognized by either the Pennsylvania or

United States Supreme Court. Thus, for the purpose of the

timeliness exception to the PCRA, only the holding of the case is

relevant.

Id. at 42-43 (emphasis added).

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Like the appellant in Chambers, Appellant is not basing his argument

on a newly-recognized constitutional right as contemplated by the PCRA.

Rather, Appellant bases his argument on Ford’s rationale that a trial court

may only impose fines based on a defendant's ability to pay. Ford, 217 A.3d

at 831.4 Additionally, our Supreme Court did not hold Ford applicable

retroactively, let alone in a PCRA setting. Thus, to the extent Appellant argues

that Ford qualifies as a newly-recognized constitutional right, the claim is

without merit.

In light of the foregoing, we conclude that Appellant’s reliance on Ford

for purposes of the newly-discovered fact exception or the newly-recognized

constitutional right exception is misplaced, and provides Appellant with no

relief.

Next, Appellant argues that the inapplicability of Ford to him results in

a violation of his equal protection/due process rights. Even if we were to

conclude that his constitutional rights were violated, Appellant would not be

entitled to relief because he failed to meet the timeliness requirements of the

PCRA. In fact, claims of constitutional dimension are subject to the same

timeliness rules. See Commonwealth v. Turner, 80 A.3d 754, 767 (Pa.

2013) (“we have already held that, in the context of the jurisdictional

timeliness restrictions on the right to bring a PCRA petition, the constitutional

nature of a collateral claim does not overcome the legislature’s restrictions on

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4 See also Brewer, supra.

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collateral review”) (internal citation omitted). Because Appellant failed to

show that his current petition is timely, casting his claim as a constitutional

violation is of no help.

Finally, Appellant attempts to avoid the timeliness restrictions of the

PCRA by alleging that he suffered a Ford violation which resulted in an illegal

sentence. According to Appellant, legality of the sentence is not subject to

the PCRA time limitations. We disagree.

The timeliness requirements of the PCRA petition must be met, even if

the underlying claim is a challenge to the legality of the sentence. See

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (“Although 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).

Because Appellant failed to show that the instant PCRA petition is timely,

we are unable to reach the merits of his claims.

Affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 05/10/2022

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