Com. v. Thomas, V.

• Court: Superior Court of Pennsylvania
• Decided: August 30, 2018
• Docket: 369 EDA 2018
• Status: Unpublished

Opinion

J-S48028-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : VINCENT THOMAS : : Appellant : No. 369 EDA 2018

Appeal from the PCRA Order December 28, 2017 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0006924-1981, CP-23-CR-0006925-1981

BEFORE: DUBOW, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY MURRAY, J.: FILED AUGUST 30, 2018

Vincent Thomas (Appellant) appeals pro se from the order denying as

untimely his serial petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541–9546. We affirm.

In 1982, Appellant was convicted of numerous crimes including rape,

involuntary deviate sexual intercourse, simple assault, recklessly endangering

another person, burglary, terroristic threats, and possessing an instrument of

crime. On October 1, 1982, he was sentenced to 18 to 36 years of

imprisonment. This Court affirmed Appellant’s sentence on direct appeal.

Commonwealth v. Thomas, 477 A.2d 501 (Pa. Super. 1984). Appellant’s

judgment of sentence became final in June 1984, when time expired for him

to seek review from the Pennsylvania Supreme Court. See Commonwealth

v. Thomas, 497 EDA 2015 (Pa. Super. Oct. 9, 2015) (unpublished). ____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S48028-18

Appellant filed the instant pro se PCRA petition on July 19, 2017.1 The

PCRA court denied the petition as untimely on December 28, 2017. Appellant

filed this appeal.2 He states his issues for review as follows:

1. Is it legal error and [a] denial of 14th Amendment Due Process to dismiss a petition without prejudice to protect rights and th[e]n later refuse the legal rights protected by said dismissal?

2. Is it error of law and abandonment by counsel where counsel performs deficiently[,] denying fair trial and effective assistance guaranteed by [the] 14th Amendment Due Process Clause?

3. Is it legal error for [the PCRA] court to fail to address [the] double jeopardy issue involving legality of sentence and was counsel ineffective for not challenging multiplicitous [sic] of offenses?

Appellant’s Brief at 2.

Our standard of review of an order denying PCRA relief is “whether the

PCRA court’s determination is supported by the evidence of record and free of

legal error. We grant great deference to the PCRA court’s findings, and we

will not disturb those findings unless they are unsupported by the certified

record.” Commonwealth v. Holt, 175 A.3d 1014, 1017 (Pa. Super. 2017)

(citation omitted). Before we reach the merits of a petitioner’s claim, Section

9545 of the PCRA requires that “[a]ny petition under this subchapter, including

____________________________________________

1 Appellant filed an amended pro se petition on September 1, 2017.

2 The PCRA court and Appellant have complied with Pa.R.A.P. 1925.

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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). The timeliness

requirement of the PCRA is “mandatory and jurisdictional in nature.”

Commonwealth v. McKeever, 947 A.2d 782, 784-785 (Pa. Super. 2008)

(citing omitted). Therefore, “no court may disregard, alter, or create equitable

exceptions to the timeliness requirement in order to reach the substance of a

petitioner’s arguments.” Id. at 785. Although the timeliness requirement is

mandatory and jurisdictional, “an untimely petition may be received when the

petition alleges, and the petitioner proves, that any of the three limited

exceptions to the time for filing set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii),

and (iii), is met.” Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa.

Super. 2013). The three exceptions to the timeliness requirement are:

(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.

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42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petition invoking an exception “shall be

filed within 60 days of the date the claim could have been presented.” 42

Pa.C.S.A. § 9545(b)(2).

This is Appellant’s sixth appeal from the denial of post-conviction relief.

See Commonwealth v. Thomas, 2983 EDA 2016 (June 29, 2017)

(unpublished); Commonwealth v. Thomas, 497 EDA 2015 (Pa. Super. Oct.

9, 2015) (unpublished); Commonwealth v. Thomas, 2139 EDA 2012 (April

4, 2013) (unpublished); Commonwealth v. Thomas, 836 EDA 1999 (July

18, 2000) (unpublished); Commonwealth v. Thomas, 00775 Philadelphia

1989 (Pa. Super. May 14, 1990) (unpublished). It is undisputed that the

underlying PCRA petition is untimely. Appellant appears to invoke the newly-

discovered facts exception to the time bar by referencing the Pennsylvania

Supreme Court’s decision in Commonwealth v. Burton, 158 A.3d 618, 638

(Pa. 2017) (holding that pro se prisoners are not subject to the presumption

that information which is of public record cannot be deemed “unknown” for

purposes of subsection 9545(b)(1)(ii)). However, Appellant fails to articulate

his discovery of any new evidence of public record, or otherwise explain how

Burton applies to his claims of PCRA court error. Rather, Appellant recycles

his prior collateral claims – that he was denied competent assistance of

counsel and was illegally sentenced – with intermittent cites to Burton. See

Appellant’s Brief at 6-24. Moreover, Appellant’s argument is overwhelmingly

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incoherent. Id. For these reasons, we agree with the PCRA court that

Appellant’s petition is untimely and he is not entitled to relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/30/18

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