J-S23013-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ELIJAH THOMPSON : : Appellant : No. 2444 EDA 2023
Appeal from the Order Entered August 30, 2023 In the Court of Common Pleas of Northampton County Criminal Division at No: CP-48-CR-0001901-2019
BEFORE: STABILE, J., KING, J., and COLINS, J.*
MEMORANDUM BY STABILE, J.: FILED DECEMBER 18, 2024
Appellant, Elijah Thompson, appeals pro se from the August 30, 2023,
order of the Court of Common Pleas of Northampton County dismissing his
petition for collateral relief filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.
On August 28, 2019, Appellant entered a negotiated guilty plea to
resisting arrest and disorderly conduct. That same day, the trial court
sentenced Appellant to an aggregate term of three to twelve months’
incarceration.1 Appellant did not file a post-sentence motion or a direct
appeal. ____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 The trial court ordered that Appellant’s aggregate sentence would run concurrently to any other sentence Appellant was serving at the time of (Footnote Continued Next Page) J-S23013-24
Appellant filed his first pro se PCRA petition on March 23, 2021, in which
he argued, inter alia, that the discovery that his county sentence could not
run concurrent with his state sentence qualified as governmental interference
and/or newly discovered facts for purposes of the timeliness of his petition.
After appointing counsel, on February 22, 2022, the PCRA court
dismissed his first petition as untimely. We affirmed the dismissal on February
7, 2023. See Commonwealth v. Thompson, No. 853 EDA 2022,
unpublished memorandum (Pa. Super. filed February 7, 2023).
On October 5, 2021, while the proceedings pertaining to the first PCRA
petition were pending, Appellant filed his second PCRA petition. Therein,
Appellant argued that he filed a timely post-sentence motion (seeking to
withdraw his guilty plea) and a notice of appeal, which the trial court clerk
either never received or did not docket.2 On July 11, 2022, the PCRA court
denied relief.
____________________________________________
sentencing. See Sentencing Order, 8/28/19. However, when an individual on state parole is convicted of a new offense and sentenced to serve a term of incarceration in a county jail, the parolee must serve the new sentence before being recommitted to serve his backtime following the revocation of his parole. See 61 Pa.C.S.A. § 6138(a)(5)(iii); see also Kerak v. Pennsylvania Bd. of Prob. & Parole, 153 A.3d 1134, 1141 (Pa. Cmwlth. 2016) (en banc) (observing that under Section 6138, a parolee’s new sentence cannot run concurrently with his backtime); Pennsylvania Bd. of Prob. & Parole, Notice, 1/21/20 (Exhibit B to Defense Counsel’s Petition to Strike Pro Se Appeal, 7/12/21) (Appellant must complete county sentence before being recommitted to state custody).
2 According to Appellant the motion and the appeal were filed in “September
of 2019.” Appellant’s Brief at 1.
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We quashed the appeal because the PCRA court lacked jurisdiction to
dismiss the second PCRA petition while the appeal from the first PCRA petition
was pending. See Commonwealth v. Thompson, No. 1859 EDA 2022,
unpublished memorandum (Pa. Super. filed January 9, 2023) and
Commonwealth v. Thompson, No. 1466 EDA 2022, unpublished
memorandum (Pa. Super. filed January 9, 2023).
On February 21, 2023, Appellant filed an appeal from the PCRA court’s
notice to deny Appellant’s PCRA petition.3 We quashed the appeal as
interlocutory. See Commonwealth v. Thompson, No. 552 EDA 2023, Order
(Pa. Super. filed July 18, 2023).
On July 27, 2023, Appellant filed a “Pro se response,” which the PCRA
court treated as a new PCRA petition. On August 30, 2023, the PCRA court
denied Appellant’s PCRA petition. This appeal followed.
Throughout most of the PCRA proceedings, including the instant appeal,
Appellant essentially claims that: (i) police officers did not have probable
cause to arrest him and (ii) the untimeliness of the underlying PCRA petition
is attributable to governmental interference (i.e., Appellant claims that he
timely filed a motion to withdraw his guilty plea and the fact said motion was
not properly recorded by the clerk is attributable to the clerks of court) and/or
3 The record remitted to us does not clarify whether the PCRA court denied
Appellant’s second PCRA petition or a subsequent one. Nonetheless, it would seem that the PCRA court denied Appellant’s second PCRA petition.
-3- J-S23013-24
newly discovered facts (i.e., the discovery that the county sentence could not
run concurrently to the state sentence) exceptions.
It is well-established that we cannot review the merits of Appellant’s
contentions (here, Fourth Amendment violations) unless the underlying
petition is timely. Because the underlying PCRA petition is facially untimely,4
Appellant must show he meets one of the exceptions to the rule. Here,
Appellant argues that timeliness is warranted under the governmental
interference5 and/or newly discovered facts6 exceptions.
There are several problems with both allegations. First, the timeliness
grounds were raised and addressed in previous proceedings. In those
instances, we noted that Appellant had failed to plead and prove the
applicability of any exception to the standard PCRA timeliness rule.
4 Appellant’s judgment of sentence became final on September 27, 2019, the
date on which the time to file a direct appeal expired. See 42 Pa.C.S.A. § 9545(b)(3), Pa.R.A.P. 903(c)(3). Accordingly, the deadline to file a timely PCRA petition was September 28, 2020. Therefore, Appellant’s instant PCRA petition, filed on July 27, 2023, is facially untimely.
5 To demonstrate the governmental interference exception, the petition must
plead and prove the failure to previously raise the claim was the result of interference by government officials, and the information could not have been obtained earlier with the exercise of due diligence. See, e.g., Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008).
6 To establish the newly-discovered fact exception to the PCRA time bar, a petitioner must demonstrate that he did not know the facts upon which he based his petition and could not have learned those facts earlier by the exercise of due diligence. Commonwealth v. Burton, 158 A.3d 618, 629 (Pa. 2017).
-4- J-S23013-24
Here, Appellant again renews his argument that the underlying petition
is timely under the governmental interference and/or the newly discovered
facts exceptions. However, Appellant nowhere explains (i) why he waited
approximately 4 years (from September 2019, the date on which he
discovered the alleged interference/new facts, to July 2023, the date of filing
the underlying PCRA petition) to bring the governmental interference claims
or (ii) how the new facts allegation qualifies as “newly discovered” facts (i.e.,
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J-S23013-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ELIJAH THOMPSON : : Appellant : No. 2444 EDA 2023
Appeal from the Order Entered August 30, 2023 In the Court of Common Pleas of Northampton County Criminal Division at No: CP-48-CR-0001901-2019
BEFORE: STABILE, J., KING, J., and COLINS, J.*
MEMORANDUM BY STABILE, J.: FILED DECEMBER 18, 2024
Appellant, Elijah Thompson, appeals pro se from the August 30, 2023,
order of the Court of Common Pleas of Northampton County dismissing his
petition for collateral relief filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.
On August 28, 2019, Appellant entered a negotiated guilty plea to
resisting arrest and disorderly conduct. That same day, the trial court
sentenced Appellant to an aggregate term of three to twelve months’
incarceration.1 Appellant did not file a post-sentence motion or a direct
appeal. ____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 The trial court ordered that Appellant’s aggregate sentence would run concurrently to any other sentence Appellant was serving at the time of (Footnote Continued Next Page) J-S23013-24
Appellant filed his first pro se PCRA petition on March 23, 2021, in which
he argued, inter alia, that the discovery that his county sentence could not
run concurrent with his state sentence qualified as governmental interference
and/or newly discovered facts for purposes of the timeliness of his petition.
After appointing counsel, on February 22, 2022, the PCRA court
dismissed his first petition as untimely. We affirmed the dismissal on February
7, 2023. See Commonwealth v. Thompson, No. 853 EDA 2022,
unpublished memorandum (Pa. Super. filed February 7, 2023).
On October 5, 2021, while the proceedings pertaining to the first PCRA
petition were pending, Appellant filed his second PCRA petition. Therein,
Appellant argued that he filed a timely post-sentence motion (seeking to
withdraw his guilty plea) and a notice of appeal, which the trial court clerk
either never received or did not docket.2 On July 11, 2022, the PCRA court
denied relief.
____________________________________________
sentencing. See Sentencing Order, 8/28/19. However, when an individual on state parole is convicted of a new offense and sentenced to serve a term of incarceration in a county jail, the parolee must serve the new sentence before being recommitted to serve his backtime following the revocation of his parole. See 61 Pa.C.S.A. § 6138(a)(5)(iii); see also Kerak v. Pennsylvania Bd. of Prob. & Parole, 153 A.3d 1134, 1141 (Pa. Cmwlth. 2016) (en banc) (observing that under Section 6138, a parolee’s new sentence cannot run concurrently with his backtime); Pennsylvania Bd. of Prob. & Parole, Notice, 1/21/20 (Exhibit B to Defense Counsel’s Petition to Strike Pro Se Appeal, 7/12/21) (Appellant must complete county sentence before being recommitted to state custody).
2 According to Appellant the motion and the appeal were filed in “September
of 2019.” Appellant’s Brief at 1.
-2- J-S23013-24
We quashed the appeal because the PCRA court lacked jurisdiction to
dismiss the second PCRA petition while the appeal from the first PCRA petition
was pending. See Commonwealth v. Thompson, No. 1859 EDA 2022,
unpublished memorandum (Pa. Super. filed January 9, 2023) and
Commonwealth v. Thompson, No. 1466 EDA 2022, unpublished
memorandum (Pa. Super. filed January 9, 2023).
On February 21, 2023, Appellant filed an appeal from the PCRA court’s
notice to deny Appellant’s PCRA petition.3 We quashed the appeal as
interlocutory. See Commonwealth v. Thompson, No. 552 EDA 2023, Order
(Pa. Super. filed July 18, 2023).
On July 27, 2023, Appellant filed a “Pro se response,” which the PCRA
court treated as a new PCRA petition. On August 30, 2023, the PCRA court
denied Appellant’s PCRA petition. This appeal followed.
Throughout most of the PCRA proceedings, including the instant appeal,
Appellant essentially claims that: (i) police officers did not have probable
cause to arrest him and (ii) the untimeliness of the underlying PCRA petition
is attributable to governmental interference (i.e., Appellant claims that he
timely filed a motion to withdraw his guilty plea and the fact said motion was
not properly recorded by the clerk is attributable to the clerks of court) and/or
3 The record remitted to us does not clarify whether the PCRA court denied
Appellant’s second PCRA petition or a subsequent one. Nonetheless, it would seem that the PCRA court denied Appellant’s second PCRA petition.
-3- J-S23013-24
newly discovered facts (i.e., the discovery that the county sentence could not
run concurrently to the state sentence) exceptions.
It is well-established that we cannot review the merits of Appellant’s
contentions (here, Fourth Amendment violations) unless the underlying
petition is timely. Because the underlying PCRA petition is facially untimely,4
Appellant must show he meets one of the exceptions to the rule. Here,
Appellant argues that timeliness is warranted under the governmental
interference5 and/or newly discovered facts6 exceptions.
There are several problems with both allegations. First, the timeliness
grounds were raised and addressed in previous proceedings. In those
instances, we noted that Appellant had failed to plead and prove the
applicability of any exception to the standard PCRA timeliness rule.
4 Appellant’s judgment of sentence became final on September 27, 2019, the
date on which the time to file a direct appeal expired. See 42 Pa.C.S.A. § 9545(b)(3), Pa.R.A.P. 903(c)(3). Accordingly, the deadline to file a timely PCRA petition was September 28, 2020. Therefore, Appellant’s instant PCRA petition, filed on July 27, 2023, is facially untimely.
5 To demonstrate the governmental interference exception, the petition must
plead and prove the failure to previously raise the claim was the result of interference by government officials, and the information could not have been obtained earlier with the exercise of due diligence. See, e.g., Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008).
6 To establish the newly-discovered fact exception to the PCRA time bar, a petitioner must demonstrate that he did not know the facts upon which he based his petition and could not have learned those facts earlier by the exercise of due diligence. Commonwealth v. Burton, 158 A.3d 618, 629 (Pa. 2017).
-4- J-S23013-24
Here, Appellant again renews his argument that the underlying petition
is timely under the governmental interference and/or the newly discovered
facts exceptions. However, Appellant nowhere explains (i) why he waited
approximately 4 years (from September 2019, the date on which he
discovered the alleged interference/new facts, to July 2023, the date of filing
the underlying PCRA petition) to bring the governmental interference claims
or (ii) how the new facts allegation qualifies as “newly discovered” facts (i.e.,
county sentence cannot run concurrently to state sentence) considering that
he had known of their existence since 2020. Because Appellant is unable to
prove the timeliness of the underlying petition, we conclude that the PCRA
court did not err in finding the underlying petition untimely.
Finally, a review of the record suggests that Appellant is no longer
entitled to PCRA relief because he served the sentence at issue here. As
indicated, he was sentenced in August 2019 to an aggregate sentence of 12
months’ incarceration, to run concurrently to other county sentences Appellant
was serving in 2019. The latest expiration date of his August 2019 sentence
would be August 2020. Because the instant petition was filed in July 2023,
Appellant is no longer entitled to PCRA relief. See, e.g., Commonwealth v.
Ahlborn, 699 A.2d 718, 720 (Pa. 1997).
Order affirmed.
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Date: 12/18/2024
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