Com. v. Thomas, D.

• Court: Superior Court of Pennsylvania
• Decided: March 17, 2017
• Docket: Com. v. Thomas, D. No. 486 MDA 2016
• Status: Unpublished

Opinion

J-S19041-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DEMOND THOMAS : : Appellant : No. 486 MDA 2016

Appeal from the PCRA Order March 7, 2016 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0000691-1997, CP-36-CR-0002212-1997, CP-36-CR-0002518-1997, CP-36-CR-0002519-1997

BEFORE: GANTMAN, P.J., BENDER, P.J.E. and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 17, 2017

Appellant Demond Thomas files this pro se appeal from the order of

the Court of Common Pleas of Lancaster County dismissing Appellant’s

petition pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm the

denial of Appellant’s untimely petition.

In January 1998, a jury convicted Appellant of robbery, conspiracy,

and related offenses. On March 2, 1998, Appellant was sentenced to an

aggregate sentence of forty to eighty years imprisonment. This Court

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* Former Justice specially assigned to the Superior Court. 1 42 Pa.C.S. §§ 9541-9546. J-S19041-17

affirmed the judgment of sentence on March 13, 2000. Appellant did not file

a petition for allowance of appeal with our Supreme Court.

Appellant filed multiple petitions for collateral relief, all of which were

unsuccessful. On April 23, 2015, Appellant filed the instant PCRA petition in

this Court. Appellant’s case was transferred to the Court of Common Pleas

of Lancaster County. The PCRA court appointed counsel, who filed a “no-

merit” letter and a petition to withdraw. On January 6, 2016, the PCRA

court notified Appellant of its intent to dismiss his petition without a hearing

pursuant to Pa.R.Crim.P. 907 and permitted counsel to withdraw. Appellant

did not respond to the Rule 907 notice. On March 7, 2016, the PCRA court

denied Appellant’s petition. This timely appeal followed.

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

is limited “to determin[ing] whether the determination of the PCRA court is

supported by the evidence of record and is free of legal error. The PCRA

court's findings will not be disturbed unless there is no support for the

findings in the certified record.” Commonwealth v. Hill, 149 A.3d 362,

364–65 (Pa.Super. 2016).

As an initial matter, we must determine whether Appellant’s PCRA

petition was timely filed. It is well-established that “the PCRA's timeliness

requirements are jurisdictional in nature and must be strictly construed;

courts may not address the merits of the issues raised in a petition if it is not

timely filed.” Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa.Super.

2011) (citations omitted). Generally, a PCRA petition must be filed within

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one year of the date the judgment of sentence becomes final unless the

petitioner meets his burden to plead and prove one of the exceptions

enumerated in 42 Pa.C.S. § 9545(b)(1)(i)-(iii), which include: (1) the

petitioner’s inability to raise a claim as a result of governmental

interference; (2) the discovery of previously unknown facts or evidence that

would have supported a claim; or (3) a newly-recognized constitutional

right. 42 Pa.C.S. § 9545(b)(1)(i)-(iii). However, the PCRA limits the reach

of the exceptions by providing that a petition invoking any of the exceptions

must be filed within 60 days of the date the claim first could have been

presented. Leggett, 16 A.3d at 1146 (citing 42 Pa.C.S. § 9545(b)(2)).

As noted above, the trial court sentenced Appellant on March 2, 1998.

After this Court affirmed Appellant’s judgment of sentence on March 13,

2000, Appellant did not seek review in our Supreme Court. Section

9545(b)(3) of the PCRA provides that a judgment of sentence becomes final

at the conclusion of direct review or the expiration of the time for seeking

the review. 42 Pa.C.S. § 9543(b)(3). Appellant’s judgment of sentence

became final on April 12, 2000, after the expiration of the thirty day period

in which he was allowed to seek review in our Supreme Court. See

Pa.R.A.P. 1113(a) (stating that “a petition for allowance of appeal shall be

filed with the Prothonotary of the Supreme Court within 30 days after the

entry of the order of the Superior Court … sought to be reviewed”). As such,

Appellant needed to file his request for collateral relief by April 12, 2001.

This petition, filed on April 23, 2015, is facially untimely.

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The only arguable exception to the PCRA time bar in Appellant’s pro se

petition is the newly recognized constitutional right timeliness exception in

Section 9545(b)(1)(iii). Appellant argues his sentence of life imprisonment

is unconstitutional pursuant to Alleyne v. U.S., ___U.S.___, 133 S.Ct.

2151, 2155 (2013), in which the United States Supreme Court held “[a]ny

fact that, by law, increases the penalty for a crime is an ‘element’ that must

be submitted to the jury and found beyond a reasonable doubt.” Based on

Alleyne, our courts have invalidated Pennsylvania statutes setting forth

mandatory minimum sentences allowing a trial court to increase a

defendant’s minimum sentence at sentencing under a preponderance of the

evidence standard. See Commonwealth v. Newman, 99 A.3d 86, 98

(Pa.Super. 2014) (en banc) (invalidating 42 Pa.C.S. § 9712.1), appeal

denied, 121 A.3d 247 (Pa. 2015); Commonwealth v. Mosley, 114 A.3d

1072, 1087–91 (Pa.Super. 2015) (invalidating 18 Pa.C.S. § 7508).

However, our Supreme Court has recently held that Alleyne does not

apply retroactively to cases on collateral review. Commonwealth v.

Washington, ___Pa.___, 142 A.3d 810, 820 (2016). Accordingly, as

Appellant failed to prove an applicable exception to the PCRA timeliness

requirements, we conclude that the PCRA court correctly dismissed

Appellant’s PCRA petition as untimely filed.

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/17/2017

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