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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
GAREY THOMAS,
Appellant No. 87 MDA 2016
Appeal from the PCRA Order entered December 18, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division, at No(s): CP-36-CR-0001553-1984
BEFORE: GANTMAN, P.J., PANELLA J., and JENKINS, J.
JUDGMENT ORDER BY PANELLA, J. FILED JUNE 30, 2016
Garey Thomas (“Appellant”) appeals from the order denying as
untimely his latest petition for relief pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
A jury found Appellant guilty of first-degree murder on March 14,
1985. On May 28, 1987, the trial court sentenced Appellant to a mandatory
term of life imprisonment. Appellant filed a timely appeal to this Court. We
affirmed Appellant’s judgment of sentence, and our Supreme Court denied
Appellant’s petition for allowance of appeal. See Commonwealth v.
Thomas, 554 A.2d 1045 (Pa. Super. 1988) (Table), appeal denied, 553 A.2d
967 (Pa. 1988). Appellant filed a pro se PCRA petition on May 30, 1990, and
the PCRA court appointed counsel. Appellant submitted a pro se amended
petition on July 9, 1990, and PCRA counsel filed a memorandum of law on
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Appellant’s behalf. Following an evidentiary hearing, the PCRA court denied
post-conviction relief on July 21, 1992. Appellant did not file an appeal.
On May 23, 2012, Appellant filed a second pro se PCRA petition, and
the PCRA court again appointed counsel. PCRA counsel filed a petition to
withdraw and a no-merit letter pursuant to Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.
Super. 1988) (en banc). Thereafter, the PCRA court issued notice of its
intent to dismiss without a hearing, agreeing with PCRA counsel’s conclusion
that Appellant’s petition was untimely. The PCRA court also granted
counsel’s petition to withdraw. Appellant filed a timely pro se appeal to this
Court. In an unpublished memorandum filed on July 23, 2014, we agreed
that Appellant’s second petition was untimely, and that he failed to prove
any exception to the PCRA’s time-bar. See Commonwealth v. Thomas,
105 A.3d 799 (Pa. Super. 2014) (Table). Appellant did not seek further
review.
On August 17, 2015, Appellant filed the petition at issue. Although
entitled both a petition for writ of habeas corpus and PCRA petition, the
PCRA court correctly treated it as a serial PCRA petition. See
Commonwealth v. Peterkin, 722 A.2d 638, 639 n.1 (Pa. 1998) (stating
that the PCRA subsumes other post-conviction remedies). Yet again, the
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PCRA court appointed counsel.1 On October 30, 2015, PCRA counsel filed a
motion to withdraw as counsel and a no-merit letter pursuant to
Turner/Finley, supra. On November 19, 2015, the PCRA court issued
notice of its intent to dismiss without a hearing and granted PCRA counsel’s
motion to withdraw. Appellant filed a response on November 30, 2015. By
order entered December 18, 2015, the PCRA court dismissed Appellant’s
petition. This timely pro se appeal follows.
When, as here, a defendant was convicted prior to the effective date of
the 1995 time-bar amendments to the PCRA, a petitioner could timely file a
PCRA petition if it was his or her first, and was filed by January 16, 1997.
See Commonwealth v. Sneed, 45 A.3d 1096, 1102 n.5 (Pa. 2012).
Appellant’s latest petition, his third, is filed almost two decades too late.
Thus, Appellant could only file a timely petition by asserting one of three
timeliness exceptions. Those exceptions involve interference by government
officials, newly-discovered facts that were unknown to the petitioner and
could not have been ascertained with due diligence, or a new constitutional
right held to apply retroactively. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
Moreover, any claim arguing an exception to the PCRA’s time-bar must be
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1
“In a second or subsequent petition, the court shall appoint counsel for an
indigent defendant only if an evidentiary hearing is required under Rule
908.” Thomas M. Place, The Post Conviction Relief Act, Practice & Procedure,
§ 6.03[4][a] (11 ed.).
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filed within sixty days of the date it could have been presented. See 42
Pa.C.S.A. § 9545(b)(2).
According to Appellant, his latest PCRA petition is timely because he is
raising a claim that he received an illegal sentence in light of the United
States Supreme Court’s decision in Alleyne v. United States, 133 S.Ct.
2151 (2013). In Alleyne, the high court held that any fact that increased
the mandatory minimum sentence for a crime is an element thereof, which
must be submitted to a jury and found beyond a reasonable doubt.
Unfortunately for Appellant, this claim is devoid of merit for several
reasons. For one, Alleyne has no application to his mandatory life sentence
imposed for first-degree murder. Even if relevant, Appellant’s claim would
still fail because he did not file his petition within sixty days of the of the
2013 Alleyne decision. See 42 Pa.C.S.A. § 9545(b)(2). And this Court has
repeatedly held that Alleyne has not been held to apply retroactively to
cases such as Appellant’s, in which the judgment of sentence became final
prior to the Alleyne decision. See, e.g., Commonwealth v. Miller, 102
A.3d 988, 995 (Pa. Super. 2014). Thus, for all of these reasons, we affirm
the PCRA court’s order dismissing Appellant’s serial PCRA petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/30/2016
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