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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
WILLIAM GEORGE THOMPSON A/K/A : No. 467 WDA 2014
WILLIAM THOMPSON, :
:
Appellant :
Appeal from the PCRA Order, January 17, 2014,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0002610-2002
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 21, 2015
William George Thompson appeals, pro se, from the order of
January 17, 2014, dismissing his PCRA1 petition without a hearing on the
basis of untimeliness. After careful review, we affirm.
The PCRA court has summarized the procedural history2 of this matter
as follows:
On September 16, 2005, [appellant] was
convicted by a jury of three counts of criminal
homicide, one count of aggravated assault, five
* Retired Senior Judge assigned to the Superior Court.
1
Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
2
The underlying facts of this matter, which are extensive, are not germane
to the instant PCRA appeal; therefore, they have been omitted. The facts
are set forth at length in the trial court’s opinion of January 15, 2010, pages
8-28.
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counts of recklessly endangering another person,
one count of possession of a firearm without a
license and one count of criminal conspiracy. On
December 12, 2005, [appellant] was sentenced to
three consecutive life sentences to be followed [by] a
sentence of ten to twenty years for his conviction of
aggravated assault; five sentences of one to two
years for his convictions of recklessly endangering
another person which were to run consecutive to his
other sentences; another consecutive sentence of
three and one-half to seven years for his conviction
of possession of a firearm without a license; and a
final sentence of ten to twenty years for his
conviction of criminal conspiracy. [Appellant] filed
an appeal to the Superior Court and this Court filed
an eighty-six page Opinion resolving the claims of
error asserted by [appellant] and his co-defendant in
their respective appeals. On February 22, 2012, the
Superior Court affirmed the judgment of sentence
imposed upon him based on this Court’s Opinion filed
on January 1[5], 2010. [Appellant] filed the instant
petition for post-conviction relief on May 13, 2013,
which was more than one year after his judgment of
sentence had become final.
PCRA court opinion, 1/22/15 at 2-3.
As stated above, this court affirmed appellant’s judgment of sentence
on February 22, 2012. Commonwealth v. Thompson, No. 378 WDA 2006
unpublished memorandum (Pa.Super. filed February 22, 2012). Appellant
did not file a petition for allowance of appeal with the Pennsylvania Supreme
Court. On May 13, 2013, appellant filed a pro se PCRA petition, requesting
that his right to file a petition for allowance of appeal be reinstated
nunc pro tunc. According to appellant, his trial attorney,
Patrick Nightingale, Esq., failed to file a requested petition for allowance of
appeal. Charles R. Pass, III, Esq., was appointed to represent appellant for
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PCRA purposes. On August 29, 2013, Attorney Pass filed a petition for leave
to withdraw and accompanying Turner/Finley “no merit” brief.3 On
September 6, 2013, the PCRA court issued Rule 9074 notice of its intention
to dismiss appellant’s petition without a hearing and granted Attorney Pass
permission to withdraw. Appellant was given 30 days in which to file a
response.
On September 12, 2013, appellant filed a petition for post-conviction
DNA testing, alleging that DNA testing on a pair of black Nike sneakers
introduced at trial would establish that they were not his, thereby
exonerating him. On October 7, 2013, appellant filed a pro se response to
Rule 907 notice. On January 17, 2014, the PCRA court dismissed appellant’s
petition for post-conviction relief. On February 18, 2014, appellant filed a
timely notice of appeal.5 Appellant complied with Pa.R.A.P., Rule 1925(b),
42 Pa.C.S.A., and the PCRA court has filed an opinion.
3
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
4
Pa.R.Crim.P., Rule 907, 42 Pa.C.S.A.
5
Monday, February 17, 2014, was Presidents’ Day, a legal holiday.
Therefore, appellant’s notice of appeal had to be filed by Tuesday,
February 18, 2014. See Pa.R.A.P. 903(a) (notice of appeal shall be filed
within 30 days after the entry of the order from which the appeal is taken);
1 Pa.C.S.A. § 1908 (excluding weekends and holidays from the computation
of time when the last day of the time period falls on a weekend or holiday).
Appellant’s appeal notice was not docketed until February 25, 2014. (Docket
#161.) However, in response to a rule to show cause issued by this court,
appellant stated that he placed his notice of appeal in the prison’s outgoing
mailbox on February 14, 2014. See Commonwealth v. Jones, 700 A.2d
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Appellant has raised the following issue for this court’s review:
Whether the court erred by denying PCRA Petition
alleging counsel is ineffective for failing to file an
ALLOWANCE OF APPEAL to the Supreme Court after
Superior Court affirmed lower Court’s decision. Then
5 to 6 months before the dead-line (3/26/13),
counselor forwards defendant a letter stating that he
no longer represents him, file a PCRA Petition, and
claim ineffective assistance of counsel. As pro se
appellant state[s], the facts will be discussed in this
matter to prove a deliberate indifference by the
PCRA Court which prejudiced appellant in not being
heard.
Appellant’s brief at 4.
Appellant’s petition was filed after the effective date
of the 1995 amendments to the PCRA; therefore, the
jurisdictional time limits established by those
amendments govern this case. Commonwealth v.
Fahy, 558 Pa. 313, 737 A.2d 214, 217-18 (1999). A
PCRA petition, including a second or subsequent one,
must be filed within one year of the date the
petitioner’s judgment of sentence became final,
unless he pleads and proves one of the three
exceptions outlined in 42 Pa.C.S.
§ 9545(b)(1).[Footnote 2] Commonwealth v.
Howard, 567 Pa. 481, 788 A.2d 351, 354 (2002). A
judgment becomes final at the conclusion of direct
review by this Court or the United States Supreme
Court, or at the expiration of the time for seeking
such review. 42 Pa.C.S. § 9545(b)(3); Howard, at
353. The PCRA’s timeliness requirements are
jurisdictional; therefore, a court may not address the
merits of the issues raised if the petition was not
timely filed. Commonwealth v. Abu-Jamal, 574
423, 426 (Pa. 1997) (an appeal by a pro se prisoner is deemed filed on the
date the prisoner deposits the appeal with prison authorities and/or places it
in the prison mailbox). We also note that the envelope in which appellant’s
notice of appeal was mailed bears a postmark of February 18, 2014.
Therefore, we consider the appeal to be timely filed.
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Pa. 724, 833 A.2d 719, 723-24 (2003);
Commonwealth v. Murray, 562 Pa. 1, 753 A.2d
201, 203 (2000). The timeliness requirements apply
to all PCRA petitions, regardless of the nature of the
individual claims raised therein. Murray, at 203.
The PCRA squarely places upon the petitioner the
burden of proving an untimely petition fits within one
of the three exceptions. See Commonwealth v.
Bronshtein, 561 Pa. 611, 752 A.2d 868, 871 (2002)
(“[I]t is the petitioner’s burden to plead and prove
that one of the exceptions applies [.]”). The PCRA
further requires a petition invoking one of these
exceptions to “be filed within 60 days of the date the
claim could have been presented.” 42 Pa.C.S.
§ 9545(b)(2). On appeal from the denial of PCRA
relief, this Court decides “whether the findings of the
PCRA court are supported by the record and free of
legal error.” Abu-Jamal, at 723.
[Footnote 2] These exceptions 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.”
42 Pa.C.S. § 9545(b)(1)(i)-(iii).
Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012).
Instantly, appellant’s judgment of sentence became final on Friday,
March 23, 2012, when the time for filing a direct appeal expired. See
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Commonwealth v. Hutchins, 760 A.2d 50, 54 (Pa.Super. 2000)
(appellant’s judgment of sentence became final after the expiration of the
30-day period in which appellant was allowed to seek further review in our
supreme court); 42 Pa.C.S.A. § 9545(b)(3). Therefore, appellant had until
March 23, 2013, to file a timely PCRA petition. Appellant’s petition, filed
May 13, 2013, is untimely.
Appellant does not plead any exception to the PCRA’s jurisdictional
one-year time bar. Appellant alleges that he suffers from a learning
disability and his jailhouse lawyer was sent to the restricted housing unit
(“RHU”) for an infraction. (Appellant’s brief at 7.) However, it is well settled
that there is no generalized equitable exception to the PCRA’s time
requirements. Commonwealth v. Brown, 943 A.2d 264, 267 (Pa. 2008).
Furthermore, appellant knew an allocatur petition had not been filed on his
behalf at least as early as November 9, 2012, when he filed a “petition for
relief” with this court alleging that:
4. Court appointed counsel was requested by this
petitioner to file a notice for allowance of
appeal to the Pennsylvania Supreme Court on
2-24-12.
5. Court appointed counsel did NOT file the notice
for appeal to the Pennsylvania Supreme Court
as requested as requested [sic] by this
petitioner.
See Turner/Finley letter, 8/29/13, appendix at A36 (emphasis in original).
Appellant’s petition was denied as there was no appeal pending before this
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court and we lacked jurisdiction. (Id. at A41.) Therefore, appellant knew
several months prior to the PCRA filing deadline that trial counsel failed to
file the requested petition for allowance of appeal. Yet, he waited until May
2013 to file a post-conviction petition alleging trial counsel’s ineffectiveness.
Cf. Commonwealth v. Williamson, 21 A.3d 236, 242 (Pa.Super. 2011)
(counsel’s failure to file a timely petition for allowance of appeal could be
considered a newly-discovered fact for purposes of Section 9545(b)(1)(ii),
but a petitioner invoking Section 9545(b)(1)(ii) must still comply with
Section 9545(b)(2) by presenting the claim within 60 days of discovering the
new fact), discussing Commonwealth v. Bennett, 930 A.2d 1264 (Pa.
2007) (counsel’s failure to perfect appellant’s appeal constituted
abandonment by counsel and could serve as a newly discovered fact for
purposes of Section 9545(b)(1)(ii)). As appellant’s petition was untimely,
the PCRA court correctly concluded that it lacked jurisdiction to consider it,
as does this court. Commonwealth v. Fairiror, 809 A.2d 396, 398
(Pa.Super. 2002) (PCRA court lacks jurisdiction to hear an untimely
petition); Bennett, supra (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)
(Superior Court lacks jurisdiction to reach the merits of an appeal from an
untimely PCRA petition).
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Turning briefly to appellant’s petition for DNA testing, it appears that
the petition is still pending in the court below. From our review of the
record, the PCRA court has not disposed of appellant’s post-conviction
petition for DNA testing filed pursuant to 42 Pa.C.S.A. § 9543.1. Therefore,
we will not address appellant’s arguments in this regard.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/21/2015
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