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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ROBBIE O. THOMAS,
Appellant No. 3191 EDA 2015
Appeal from the PCRA Order Entered October 5, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s):
CP-51-CR-1004712-1990
CP-51-CR-1053792-1990
BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 23, 2016
Appellant, Robbie O. Thomas, appeals pro se from the post-conviction
court’s October 5, 2015 order denying, as untimely, his fourth petition filed
under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We
affirm.
The PCRA court summarized the procedural history of Appellant’s case
as follows:
On November 1, 1991, following a jury trial, [Appellant]
was convicted of first-degree murder, criminal conspiracy,
possession of an instrument of crime and unlawful restraint. On
June 18, 1993, the trial court imposed a sentence of life
imprisonment for murder and suspended sentencing for the
related offenses. On July 18, 1994, following a direct appeal,
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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the Superior Court affirmed the judgment of sentence.2 The
Pennsylvania Supreme Court denied allocatur on December 9,
1994.3
2
Commonwealth v. Thomas, 649 A.2d 464 (Pa. Super.
1994)(unpublished memorandum).
3
Commonwealth v. Thomas, 653 A.2d 1230 (Pa. 1994).
[Appellant] filed his first pro se PCRA petition on November
18, 1996.4 Counsel was appointed and subsequently filed a
Turner/Finley no-merit letter.5 The PCRA court denied the
petition on June 23, 1998. The Superior Court affirmed the
PCRA court’s denial on November 24, 1999.6 Our Supreme
Court denied allocatur on April 11, 2000.7
4
The current version of the PCRA contains a provision
permitting a defendant whose conviction became final prior
to January 16, 1996, the date the current version of the
PCRA took effect, to file a timely first PCRA petition within
one year of that date. See Commonwealth v. Alcorn,
703 A.2d 1054, 1056-57 (Pa. Super. 1997)(holding that
where a petitioner’s judgment of sentence became final on
or before the effective date of the amendment to the
PCRA, the amended PCRA contained a provision whereby a
first PCRA petition could be filed by January 16, 1997,
even if the conviction in question became final more than a
year prior to the date of the filing).
5
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988)(en banc).
6
Commonwealth v. Thomas, 748 A.2d 1256 (Pa. Super.
1999)(unpublished memorandum).
7
Commonwealth v. Thomas, 757 A.2d 932 (Pa. 2000).
[Appellant] filed his second pro se PCRA petition on
October 18, 2004. Following the appointment of counsel, a
Turner/Finley no-merit letter was filed. The PCRA court
subsequently dismissed the petition on June 19, 2006. The
Superior Court affirmed the PCRA court’s dismissal on October
10, 2007.8 Our Supreme Court denied allocatur on August 13,
2008.9
8
Commonwealth v. Thomas, 943 A.2d 324 (Pa. Super.
2007)(unpublished memorandum).
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9
Commonwealth v. Thomas, 959 A.2d 929 (Pa. 2008).
[Appellant] filed his third PCRA petition on September 25,
2009. The PCRA court subsequently dismissed the petition as
untimely on December 17, 2010. The Superior Court affirmed
the PCRA court’s dismissal on September 6, 2011.10
10
Commonwealth v. Thomas, 34 A.3d 216 (Pa. Super.
2011)(unpublished memorandum).
[Appellant’s] current PCRA petition, his fourth, was filed
pro se on January 8, 2013. Pursuant to Pennsylvania Rule of
Criminal Procedure 907, [Appellant] was served with notice of
the court’s intention to dismiss his PCRA petition on August 3,
2015. [He did not file a response.] The PCRA court dismissed
[Appellant’s] petition as untimely on October 5, 2015. [He] filed
the instant notice of appeal to the Superior Court on October 15,
2015.
PCRA Court Opinion (PCO), 11/12/15, at 1-2.
Appellant was not directed by the PCRA court to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. However, the
PCRA court filed a Rule 1925(a) opinion on November 12, 2015. Appellant
does not set forth in his brief to this Court a statement of the question(s)
sought to be reviewed, and his brief, as a whole, is nearly comprehensible.
From what we can ascertain, Appellant seeks to raise three claims, which we
summarize as follows:
I. Appellant’s plea was unlawfully induced because he was
mentally ill at the time the plea was entered.
II. Appellant’s plea counsel acted ineffectively by coercing
Appellant to enter his plea when Appellant was mentally ill at the
time.
III. Appellant’s sentence is illegal.
See Appellant’s Brief at 4-5 and 7.
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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). 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). 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 following
exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
(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
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. § 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’s judgment of sentence became final on March 9,
1995, upon the expiration of 90 day time period for filing a writ of certiorari
with the United States Supreme Court. Thus, his current petition, filed in
January of 2013, is patently untimely, and for this Court to have jurisdiction
to review the merits of Appellant’s claims, he must prove that he meets one
of the exceptions to the timeliness requirements set forth in 42 Pa.C.S. §
9545(b).
Again, Appellant’s brief to this Court is extremely confusing. From
what we are able to understand, the main thrust of his argument is that his
plea was unlawfully induced because he was mentally ill. He seems to
suggest that he did not know that he was mentally ill at the time he pled
guilty, and only later discovered that fact. Even if we interpret Appellant’s
argument as an attempt to satisfy the after-discovered fact exception of
section 9545(b)(1)(ii), he waived this claim by failing to present it in his
PCRA petition. 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.”).
In any event, Appellant has also failed to prove that he acted with due
diligence in discovering this claim, or that he filed his petition within 60 days
thereof. Appellant mentions a report by a psychiatrist from 2008, but his
petition was not filed until 2013. See Appellant’s Brief at 7. He does not
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explain why he was unable to discover his mental illness earlier, or argue
that he filed his petition within 60 days of when this claim could have first
been presented. Therefore, Appellant has not demonstrated the applicability
of the after-discovered fact exception of section 9545(b)(1)(ii), or that he
satisfied section 9545(b)(2).
Appellant’s other two claims also fail to meet any timeliness exception.
Appellant alludes that his attorney was ineffective for coercing him to enter a
guilty plea despite his mental illness. “It is well settled that allegations of
ineffective assistance of counsel will not overcome the jurisdictional
timeliness requirements of the PCRA.” Commonwealth v. Wharton, 886
A.2d 1120, 1127 (Pa. 2005) (citations omitted). Appellant also baldly
contends that his sentence is illegal, which also fails, in and of itself, to
satisfy a timeliness exception. Commonwealth v. Fahy, 737 A.2d 214,
223 (Pa. 1999) (holding that claims challenging the legality of sentence are
subject to review within PCRA, but must first satisfy the PCRA’s time limits).
In sum, Appellant has not proven that a timeliness exception applies
to any of his claims. Therefore, we ascertain no abuse of discretion by the
PCRA court in denying his facially untimely petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/23/2016
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