J-S65039-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
THOMAS BENJAMIN ELLINGTON
Appellant No. 488 EDA 2015
Appeal from the PCRA Order January 7, 2015
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000058-2010
CP-45-CR-0001008-2009
BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED JANUARY 05, 2016
Appellant Thomas Benjamin Ellington appeals pro se from the order
entered in the Monroe County Court of Common Pleas, which dismissed his
petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1
We affirm.
The relevant facts and procedural history of this appeal are as follows.
On March 15, 2010, a jury convicted Appellant of possession of cocaine2 and
possession with intent to deliver cocaine3 at Docket Number CP-45-CR-
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1
42 Pa.C.S. §§ 9541-9546.
2
35 Pa.C.S. § 780-113(a)(16).
3
35 Pa.C.S. § 780-113(a)(30).
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0001008-2009. On May 4, 2010, Appellant pled guilty to simple assault 4 for
an incident that occurred on November 13, 2009, at docket number CP-45-
CR-0000058-2010. On May 25, 2010, the trial court imposed consecutive
sentences of 1-2 years’ incarceration for Appellant’s simple assault
conviction and 6-12 years’ incarceration for his drug convictions.5 This Court
affirmed his judgment of sentence on February 25, 2011. Appellant did not
file a petition for allowance of appeal with our Supreme Court.
On February 3, 2012, Appellant filed a pro se PCRA petition and a pro
se amended PCRA petition (collectively, “Appellant’s first PCRA petition”).6
On March 26, 2012, the PCRA court appointed counsel. After conducting an
evidentiary hearing on June 4, 2012, the PCRA court denied Appellant’s first
PCRA petition on October 2, 2012. This Court affirmed the PCRA court order
denying Appellant’s first PCRA petition on November 8, 2013. Our Supreme
Court denied Appellant’s petition for allowance of appeal for his first PCRA
petition on July 8, 2014.7
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4
Pa.C.S. § 2701(a)(1).
5
Appellant’s convictions of possession of cocaine and possession with intent
to distribute cocaine merged for sentencing purposes.
6
The PCRA petition was 75 pages in length and asserted various ineffective
assistance of counsel claims. The amended petition, filed the same day,
incorporated his original petition and additionally asserted a constitutional
challenge to the Motor Vehicle Code.
7
Our Supreme Court filed an order denying Appellant’s petition for
allowance of appeal on August 5, 2014.
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On September 8, 2014, Appellant filed his second pro se PCRA
petition, which is the subject of this appeal. On November 6, 2014, the
PCRA court issued a notice of intent to dismiss Appellant’s petition without a
hearing pursuant to Pa.R.Crim.P. 907. On November 24, 2014, Appellant
filed a response to the PCRA court’s notice. On January 7, 2015, the PCRA
court dismissed Appellant’s petition.
On January 26, 2015, Appellant filed a timely notice of appeal. On
February 10, 2015, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).8
Appellant timely complied on March 9, 2015.9
Appellant raises the following issues for our review:
1. WHETHER [APPELLANT’S] SECOND PCRA PETITION WAS
UNTIMELY DESPITE HIS HAVING PROPERLY INVOKED AN
EXCEPTION TO THE TIMEBAR WITHIN SIXTY (60) DAYS OF
THE DATE THE CLAIM COULD HAVE BEEN PRESENTED?
2. WHETHER THE PCRA COURT ERRED AND MADE AN
UNREASONABLE APPLICATION OF THE TIMELINESS
STATUTORY EXCEPTIONS WHEN IT APPLIED A “MERITS
ANALYSIS” TO [APPELLANT’S] SECOND PCRA PETITION?
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8
The PCRA court also ordered withdrawal of Appellant’s prior PCRA counsel
as counsel had not yet withdrawn from representing Appellant.
9
On April 2, 2015, the PCRA court filed an opinion pursuant to Pa.R.A.P.
1925(a).
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3. WHETHER THE PCRA COURT ERRED AND MADE AN
UNREASONABLE FACTUAL DETERMINATION BY
CONCLUDING THAT [APPELLANT] DID NOT PROPERLY
PLEAD, PROVE AND PRESENT MR. SKUTNIK’S
INEFFECTIVENESS IN CORRELATION TO/IN CONJUNCTION
WITH MR. LABAR’S INEFFECTIVENESS BY SUGGESTING
THAT MR. ELLINGTON FAILED TO LAYER HIS CLAIMS?
4. WHETHER THE PCRA COURT ABUSED ITS DISCRETION
AND MADE AN UNREASONABLE FACTUAL DETERMINATION
THAT MR. LABAR’S PERJURY WAS “FULLY EXAMINED?”
5. DID THE PCRA COURT ERR WHEN IT UNREASONABLY
APPLIED AND DETERMINED THAT MR. ELLINGTON DID
NOT PRESENT ANY GENUINE ISSUES OF MATERIAL FACT?
6. WHETHER THE PCRA COURT UNREASONABLY APPLIED
THE “FAILURE TO AMEND/BRIEF A PRO SE PCRA” LINE OF
CASES CONCLUDING THAT SUCH CASES PERTAIN ONLY
TO PRO SE PCRAS DISMISSED WITHOUT A HEARING?
7. WHETHER MR. ELLINGTON’S CLAIMS OF TRIAL/PCRA
COUNSEL’S INEFFECTIVENESS LACKED MERIT AND/OR
WERE PREVIOUSLY LITIGATED AND THEREBY WAIVED?
8. WHETHER THE PCRA COURT ERRED IN NOT FINDING
PCRA COUNSEL INEFFECTIVE FOR FAILING TO RAISE
OTHERWISE MERITORIOUS ISSUES OR CONSIDERED TO
HAVE RAISED AN ISSUE AT ALL GIVEN HIS FAILURE TO
AMEND [APPELLANT’S] PRO SE PCRA PETITION OR BRIEF
IT?
9. WHETHER [APPELLANT] IS NOW SERVING AN ILLEGAL,
MANDATORY MINIMUM SENTENCE IMPOSED UNDER 18
PA.C.S.A. § 7508 IN LIGHT OF SEVERAL RECENT CASE
DECISIONS DECLARING THE STATUTE “FACIALLY
UNCONSITUTIONAL” BASED UPON THE HOLDINGS OF
ALLEYNE V. U.S., ___ U.S. ___, 133 S.CT. 2151 (2013)
AND COMMONWEALTH V. NEWMAN, 99 A.3D 86
(PA.SUPER.2014) (en banc)?
Appellant’s Brief at 4-5 (verbatim).
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Additionally, Appellant raised the following issue is his supplemental
brief:
WHETHER THE UNITED STATES SUPREME COURT’S
RECENT DECISION IN RODRIGUEZ V. UNITED STATES,
13-9972 (2015) APPLIES HERE[, WHERE APPELLANT’S]
CONSTITUTIONAL SHIELD AGAINST UNREASONABLE
SEARCH AND SEIZURE WAS VIOLATED DURING THE
ROUTINE TRAFFIC STOP THAT WAS CONTINUED AND
DELAYED FOR PURPOSES OF BRINGING A DRUG
INTERDICTION K-9 TO THE SCENE FOR AN
INVESTIGATIVE SEARCH?
Appellant’s Supplemental Brief at 1.
Before we address the merits of Appellant’s claims, we must determine
whether his PRCA petition was timely. The timeliness of a PCRA petition
implicates the jurisdiction of both this Court and the PCRA court.
Commonwealth v. Williams, 35 A.3d 44, 52 (Pa.Super.2011), appeal
denied, 50 A.3d 121 (Pa.2012). “Pennsylvania law makes clear that no
court has jurisdiction to hear an untimely PCRA petition.” Id. To “accord
finality to the collateral review process[,]” the PCRA “confers no authority
upon [appellate courts] to fashion ad hoc equitable exceptions to the PCRA
timebar[.]” Commonwealth v. Watts, 23 A.3d 980, 983 (Pa.2011). With
respect to timeliness under the PCRA, this Court has further explained:
The most recent amendments to the PCRA...provide a
PCRA petition, including a second or subsequent petition,
shall be filed within one year of the date the underlying
judgment becomes final. A judgment is deemed final at
the conclusion of direct review, including discretionary
review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of
time for seeking the review.
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Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010)
(citations and quotations omitted), appeal denied, 20 A.3d 1210 (Pa.2011);
see also 42 Pa.C.S. § 9545.
Here, Appellant’s judgment of sentence became final on March 28,
2011, when Appellant’s time for seeking review with our Supreme Court
expired.10 See Monaco, supra. Therefore, he had until March 28, 2012 to
timely file a PCRA petition. Thus, his second PCRA petition, filed September
8, 2014, is patently untimely.
This Court may review a PCRA petition filed more than one year after
the judgment of sentence becomes final only if the claim falls within one of
the following three statutory exceptions, which the petitioner must plead and
prove:
(i) the failure to raise the claim 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
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10
This period would have expired on March 27, 2011. However, as March
27, 2011 fell on a Sunday, Appellant had until March 28, 2011 to file a
petition for allowance of appeal to our Supreme Court.
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provided in this section and has been held by that court
to apply retroactively.
42 Pa.C.S. § 9545(b)(1). Further, if a petition pleads one of these
exceptions, the petition will not be considered unless it is “filed within 60
days of the date the claim could have been presented.” 42 Pa.C.S. §
9545(b)(2).11
Here, Appellant fails to plead and prove any of the exceptions to the
PCRA time bar. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/5/2016
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11
On page 12 of his brief, Appellant contends his petition is properly before
us because he filed his second PCRA petition within sixty days of our
Supreme Court’s denial of his petition of allowance of appeal for the order
denying his first PCRA petition. Filing a timely PCRA petition, however, does
not toll the period for filing a subsequent PCRA petition. See
Commonwealth v. Rienzi, 827 A.2d 369, 371 (Pa.2003) (“the PCRA
jurisdictional time limitation is not subject to equitable principles such as
tolling.”) (citation omitted).
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