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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
THOMAS WILLIAM THOMPSON, JR.,
Appellant No. 534 MDA 2014
Appeal from the PCRA Order Entered March 25, 2014
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0004301-2004
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 22, 2014
Appellant, Thomas William Thompson, Jr., appeals pro se from the
March 25, 2014 order denying as untimely his petition for relief filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541-9546.
We affirm.
On January 5, 2005, Appellant was convicted by a jury of attempted
murder, aggravated assault, arson, and possession of explosive/incendiary
materials or devices. On March 14, 2005, he was sentenced to an aggregate
term of 10 to 20 years’ incarceration. He filed a timely appeal with this
Court and, after we affirmed Appellant’s judgment of sentence, our Supreme
Court denied his subsequent petition for allowance of appeal.
Commonwealth v. Thompson, 907 A.2d 1139 (Pa. Super. 2006)
(unpublished memorandum), appeal denied, 917 A.2d 846 (Pa. 2006).
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Appellant filed a timely pro se PCRA petition and counsel was
appointed. That petition was ultimately denied, and Appellant appealed to
this Court. After we affirmed (and also denied Appellant’s subsequent
request for reargument en banc), our Supreme Court denied Appellant’s
petition for allowance of appeal. Commonwealth v. Thompson, 991 A.2d
362 (Pa. Super. 2009) (unpublished memorandum), appeal denied, 3 A.3d
671 (Pa. 2010). On October 12, 2010, Appellant filed a second pro se PCRA
petition and counsel was appointed. Again, the PCRA court denied Appellant
relief, this Court affirmed, and our Supreme Court denied Appellant’s petition
for allowance of appeal. Commonwealth v. Thompson, 53 A.3d 938 (Pa.
Super. 2012) (unpublished memorandum), appeal denied, 57 A.3d 70 (Pa.
2012).
While Appellant’s appeal from the denial of his second PCRA petition
was pending, he filed a third pro se PCRA petition on May 21, 2012. The
PCRA court issued an order on June 11, 2012, stating that no action would
be taken on Appellant’s third petition while the appeal from the denial of his
second petition was pending. On April 17, 2013, after his appeal from the
denial of his October 12, 2010 petition had concluded, Appellant filed a
“Motion for Leave to Resume the PCRA Proceedings,” asking that the court
address the merits of his May 21, 2012 petition. On February 12, 2014, the
PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss
Appellant’s petition as untimely. Rather than filing a response, Appellant
filed a premature pro se notice of appeal. Thereafter, on March 25, 2014,
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the PCRA court entered a final order denying Appellant’s petition. We will
treat Appellant’s appeal as having been filed after that final order. See
Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the announcement of a
determination but before entry of an appealable order shall be treated as
filed after such entry and on the day thereof.”); Commonwealth v.
Ratushny, 17 A.3d 1269, 1271 n.4 (Pa. Super. 2011) (relying on Rule 905
to treat appellant’s premature notice of appeal as having been filed after the
entry of the order denying his post-sentence motion).
On appeal, Appellant raises two questions for our review:
I. Whether Lafler v. Cooper, 132 S.Ct. 1376 (2012),
established a newly recognized constitutional right that should
be applied retroactively to cases on collateral review?
II. Whether 42 Pa.C.S.A. § 9545(b)(1)(iii) is unconstitutional
under the Supremacy Clause of Article VI of the United States
Constitution and the Due Process Clause of the Fourteenth
Amendment, where it imposes an obligation on the Supreme
Court to decide the retroactivity of its cases prior to granting a
petitioner a right to relief?
Appellant’s Brief at 4 (unnecessary capitalization omitted).
This Court’s standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). The PCRA court’s findings will not
be disturbed unless there is no support for the findings in the certified
record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).
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We must begin by addressing the timeliness of Appellant’s petition,
because the PCRA time limitations implicate our jurisdiction and may not be
altered or disregarded in order to address the merits of a petition.
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (stating
PCRA time limitations implicate our jurisdiction and may not be altered or
disregarded to address the merits of the petition); Commonwealth v.
Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002) (holding the Superior
Court lacks jurisdiction to reach merits of an appeal from an untimely PCRA
petition). Under the PCRA, any petition for post-conviction relief, including a
second or subsequent one, must be filed within one year of the date the
judgment of sentence becomes final, unless one of the exceptions set forth
in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies. That section states, in relevant
part:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition
alleges and the petitioner 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
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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. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke one of
these exceptions “shall be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, Appellant acknowledges that his instant petition is patently
untimely. Appellant’s Brief at 14. However, he claims that he has proven
the applicability of the timeliness exception set forth in section
9545(b)(1)(iii). Specifically, Appellant maintains that his May 21, 2012
petition was filed within 60 days of the United States Supreme Court’s
decision in Lafler, which he avers recognized a new constitutional right to
effective representation of counsel during the plea negotiation process.
Appellant further contends that Lafler applies retroactively.
However, in Commonwealth v. Feliciano, 69 A.3d 1270 (Pa. Super.
2013), this Court expressly held that neither Lafler, nor Missouri v. Frye,
132 S.Ct. 1399 (2012), a companion case to Lafler, created a new
constitutional right. Feliciano, 69 A.3d at 1276. “Instead, these decisions
simply applied the Sixth Amendment right to counsel, and the Strickland
[v. Washington, 466 U.S. 668 (1985),] test for demonstrating counsel’s
ineffectiveness, to the particular circumstances at hand, i.e.[,] where
counsel’s conduct resulted in a plea offer lapsing or being rejected to the
defendant’s detriment.” Id. at 1277. Based on our holding in Feliciano, it
is clear that Appellant cannot rely on Lafler to satisfy the timeliness
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exception of section 9545(b)(1)(iii). Accordingly, Appellant’s first argument
does not prove that his PCRA petition should be considered as timely.
In Appellant’s second issue, he maintains that “[t]o the extent that
[section] 9545(b)(1)(iii) requires the Supreme Court of the United States to
explicitly hold that its decisions apply retroactively before a petitioner may
seek relief under the PCRA, Appellant submits that such a requirement is
unconstitutional under the Supremacy Clause of Article VI of the United
States Constitution, and the Due Process Clause of the Fourteenth
Amendment to the United States Constitution.” Appellant’s Brief at 15. We
need not further address the specifics of Appellant’s argument because he
did not raise this claim in his PCRA petition filed on May 21, 2012, or in his
April 17, 2013 “Motion for Leave to Resume the PCRA Proceedings.”
Accordingly, this claim is waived. See Pa.R.A.P. 302(a) (“Issues not raised
in the lower court are waived and cannot be raised for the first time on
appeal.”); Pa.R.A.P. 902(B) (“Each ground relied upon in support of the
relief requested shall be stated in the [PCRA] petition. Failure to state such
a ground in the petition shall preclude the defendant from raising that
ground in any proceeding for post-conviction collateral relief.”); see also
Commonwealth v. Rainey, 928 A.2d 215, 226 (Pa. 2007) (noting that
issues not raised in a PCRA petition are waived and cannot be considered for
the first time on appeal). In any event, we note that even if Appellant had
raised this assertion below, he does not explain which of the above-stated
exceptions to the PCRA timeliness requirement it satisfies. Accordingly, we
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would not have jurisdiction to review the merits his argument, even if it
were preserved for our review.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/2014
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