J-S52007-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ROMELL THOMPSON, :
:
Appellant : No. 867 MDA 2016
Appeal from the PCRA Order March 31, 2016
in the Court of Common Pleas of Cumberland County,
Criminal Division, No(s): CP-21-CR-0002705-2008
BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 23, 2017
Romell Thompson (“Thompson”) appeals from the Order denying his
third Petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We
affirm.
This Court previously set forth the relevant factual and procedural
history of this case in its Opinion affirming the denial of Thompson’s second
PCRA Petition, which we adopt for the purpose of this appeal. See
Commonwealth v. Thompson, 105 A.3d 801 (Pa. Super. 2014)
(unpublished memorandum at 1-3).
Subsequently, on March 29, 2016, Thompson, pro se, filed a Motion to
Reopen/Reconsider, which the PCRA court properly treated as Thompson’s
1
See 42 Pa.C.S.A. §§ 9541-9546.
J-S52007-17
third PCRA Petition.2 The PCRA court denied the Petition on March 31, 2016,
without a hearing. Thompson, pro se, filed a timely Notice of Appeal and a
court-ordered Concise Statement of matters complained of on appeal. On
June 24, 2016, the PCRA court appointed Thompson counsel, who filed an
Amended Concise Statement.3
On appeal, Thompson raises the following issues for our review:
1. Did the PCRA court abuse it[]s discretion or commit an error
of law by denying the PCRA [Petition] as untimely?
2. Did the PCRA court abuse it[]s discretion or commit an error
of law by denying [Thompson] PCRA relief?
3. Did the PCRA court violate [Thompson’s] right to represent
himself when [Thompson] did not request the assistance of
counsel[,] nor did the court hold a hearing to determine if
[Thompson] wanted the assistance of counsel?
Brief for Appellant at 5 (some capitalization omitted).
In reviewing the denial of a PCRA Petition, we examine whether the
PCRA court’s determination “is supported by the record and free of legal
error.” Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)
(citations omitted).
2
Under established Pennsylvania precedent, “the PCRA is intended to be the
sole means of achieving post-conviction relief.” Commonwealth v. Taylor,
65 A.3d 462, 465 (Pa. Super. 2013) (citations omitted). Thus, issues that
are cognizable under the PCRA must be raised in a timely PCRA petition, and
a petitioner may not escape the PCRA’s mandates by titling his petition a
“motion.” See id.
3
Notably, in the Amended Concise Statement, counsel raised the same
issues that Thompson had raised in his pro se Concise Statement, and added
one more issue.
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As Thompson’s first two issues are related, we will address them
together. Thompson contends that the PCRA court erred by not conducting
a hearing prior to denying his Petition. Brief for Appellant at 9. Thompson
claims that “[t]he [PCRA] court asserts that the claims are without merit in
[its] Pa.R.A.P. 1925(a) [O]pinion, but did not give [] Thompson the
opportunity to flesh out any additional facts not known previously.” Id.
Thompson asserts that the PCRA court’s Order should be reversed, and the
case remanded for a hearing. Id.
The PCRA court has the discretion to dismiss a petition without a
hearing when the court is satisfied “that there are no genuine issues
concerning any material fact, the petitioner is not entitled to post-conviction
collateral relief, and no legitimate purpose would be served by further
proceedings.” Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011);
see also Pa.R.Crim.P. 907. “To obtain reversal of a PCRA court’s decision to
dismiss a petition without a hearing, an appellant must show that he raised
a genuine issue of fact which, if resolved in his favor, would have entitled
him to relief, or that the court otherwise abused its discretion in denying a
hearing.” Paddy, 15 A.3d at 442 (quoting Commonweath v. D’Amato,
856 A.2d 806, 820 (Pa. 2004)). An evidentiary hearing “is not meant to
function as a fishing expedition for any possible evidence that may support
some speculative claim of ineffectiveness.” Commonwealth v. Jones, 811
A.2d 994, 1003 n.8 (Pa. 2002) (citation omitted) (wherein the Supreme
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Court declined to remand for an evidentiary hearing when the appellant
made no proffer of evidence).
Here, the PCRA court denied Thompson’s Petition as untimely filed
under the PCRA. See PCRA Court Opinion, 11/22/16, at 3-4. Under the
PCRA, any PCRA petition “including a second or subsequent petition, shall be
filed within one year of the date the judgment becomes final[.]” 42
Pa.C.S.A. § 9545(b)(1) (emphasis added). A judgment of sentence becomes
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.” Id. § 9545(b)(3). The
PCRA’s timeliness requirements are jurisdictional in nature, and a court may
not address the merits of the issues raised if the PCRA petition was not
timely filed. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa.
2010).
Thompson’s judgment of sentence became final in 2010, when the
period of time to file an appeal with our Supreme Court expired.4 See 42
Pa.C.S.A. § 9545(b)(3); see also Commonwealth v. Rojas, 874 A.2d 638,
643 (Pa. Super. 2005). Thompson had until 2011 to file the instant PCRA
4
This Court affirmed Thompson’s judgment of sentence on August 30, 2010,
Commonwealth v. Thompson, 11 A.3d 1043 (Pa. Super. 2010)
(unpublished memorandum), and Thompson did not seek allowance of
appeal to our Supreme Court.
-4-
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Petition, but did not do so until 2016. Thus, Thompson’s Petition is facially
untimely under the PCRA.
Pennsylvania courts may consider an untimely PCRA petition if the
appellant can explicitly plead and prove one of three exceptions set forth
under 42 Pa.C.S.A. § 9545(b)(1). Any PCRA petition invoking one of these
exceptions “shall be filed within 60 days of the date the claim could have
been presented.” Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094.
Here, Thompson has failed to plead or prove the applicability of any of
the exceptions to the PCRA timeliness requirements. See 42 Pa.C.S.A.
§ 9545(b)(1); Albrecht, 994 A.2d at 1094. Accordingly, Thompson has
failed to overcome the untimeliness of his Petition, and the PCRA court,
lacking jurisdiction to consider the Petition, did not err by denying it without
a hearing. See Albrecht, 994 A.2d at 1093.
In his third issue, Thompson contends that the PCRA court erred by
appointing him counsel because he “never expressed a desire for the
assistance of counsel.” Brief for Appellant at 11. Thompson points out that,
prior to the appointment of counsel, Thompson had filed, pro se, a Notice of
Appeal, a request to proceed in forma pauperis and a Concise Statement.
Id. at 11-12. Thompson argues that the PCRA court improperly failed to
conduct a hearing to determine if Thompson wanted an attorney to
represent him. Id. at 12.
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In its Opinion, the PCRA court addressed Thompson’s third issue and
determined that it lacks merit. See PCRA Court Opinion, 11/22/16, at 5-7.
We agree with the reasoning of the PCRA court, and affirm on this basis as
to Thompson’s third issue. See id.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2017
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Circulated 08/03/2017 12:04 PM
COMMONWEAL TH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CP - 21 - CR - 2705 - 2008
v. : CHARGES: (1) CRIMINAL CONSPIRACY TO
UNLAWFUL DELIVERY,
MANUFACTURE, OR
POSSESSION WITH INTENT
TO DELIVER A SCHEDULE I
AND/OR II C.S.
(2) UNLAWFUL DELIVERY OR
MANUFACTURE OR
POSSESSION WITH INTENT
TO DELIVER A SCHEDULE
II CONTROLLED
SUBSTANCE
(3) UNLAWFUL DELIVERY,
MANUFACTURE OR
POSSESSION WITH INTENT
TO DELIVER A SCHEDULE I
CONTROLLED SUBSTANCE
ROMELL THOMPSON
OTN: L442499-1 AFFIANT: TPR. JAMES M. BORZA
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925Ca)
Ebert, J., November 22, 2016 -
In this post-sentence appeal, Appellant challenges the denial of Post-Conviction
Relief Act petition, as well as violating Appellant's right to represent himself. This
opinion is written pursuant to Pa. R.A.P. 1925(a). Appellant's bases for appeal are as
follows:
1. Counsel incorporates paragraph 1 of Mr. Thompson's prose Appellant's Concise
Statement of Errors on Appeal Per Pa. R.A.P. 1925(8), by reference, as though
fully set forth herein at length. See Attachment "A". [wherein Appellant averred,
"Whether the Court.abused.its_ discretion or __ committed _c1ri -~rr.o_r of lm,v__ qy denying
the P.C.R.A. as untimely?"]
A- - 1
2. Counsel incorporates paragraph 2 of Mr. Thompson's prose Appellant's Concise
Statement of Errors on Appeal Per Pa. R.A.P. 1925(8), by reference, as though
fully set forth herein at length. See Attachment "A". [wherein Appellant averred,
/ "Whether the court abused its' discretion or committed an error of law by denying
the P.C.R.A. petitioner relief?"]
3. The court violated Mr. Thompson's right to represent himself. The record does
not show that Mr. Thompson affirmatively requested the assistance of counsel,
nor did the court hold a hearing to determine if Mr. Thompson desired the
assistance of counsel.
Statement of Facts
Rather than restate the facts of this matter from the beginning, I will note that the
Honorable Superior Court previously summarized the facts in its Opinion of July 24,
2014, wherein it affirmed the denial of Appellant's second P.C.R.A. petition. See
generally Memorandum Opinion, Filed July 24, 2014, No. 1941 MDA 2013 (Pet. for
allowance of appeal denied, November 24, 2014, at 654 MAL 2014). Here, the court
has before it Appellant's third P.C.R.A. petition stemming from Appellant's ~une 25,
2009, conviction and August 25, 2009, sentencing.
Instantly, Appellant's Motion to Reopen/Reconsider was filed on March 29, 2016.
Appellant's Motion to Reopen/Reconsider was denied by Order of Court on March 31,
2016. Appellant's Notice of Appeal was filed on April 14, 2016. On May 20, 2016,
Appellant filed a Motion for Leave to Continue In Forma Pauperis, which was granted by
Order of Court dated May 25, 2016. On June 06, 2016, Appellant was ordered to file his
Pa. R.A.P. 1925(8) statement no later than June 27, 2016. Appellant subsequently
requested, and received, three extensions of time to file his Rule 1925(b) statement
(1) to July 15, 2016, (2) to August 10, 2016, and finally (3) to September 12, 2016.
Appellant's Rule 1925(8) statement was finally received by the court on September 12,
2016.
,4- 2
In that interval, Appellant received court-appointed counsel by Order dated June
24, 2016. Appellant also filed a prose Rule 1925(8) statement on June 30, 2016, which
was incorporated into Appellant's final Rule 1925(8) filed on September 12, 2016.
I
Additionally, on August 02, 2016, this court received a first notice from the Superior
Court that the record in the instant case was overdue. Appellant's final Rule 1925(8)
statement, filed on September 12, 2016, raises three issues for review, prompting this
court's Pa. RAP. 1925(a) opinion.
Discussion
A. Whether Appellant's instant P.C.R.A. Petition is untimely
The first error raised on appeal by Appellant is that this court improperly denied
as untimely Appellant's March 29, 2016, Motion to Reopen/Reconsider the denial of his
second P.C.R.A. petition. Appellant contends that new review of his P.C.R.A. petition is
merited due to the denial of his previous petition being based on invalid grounds and
conclusions, including the conclusion that the P.C.R.A. was untimely filed.1 Appellant
cited to the recent U.S. Supreme Court case of Montgomery v. Louisiana, 136 S. Ct.
718, 193 L. Ed. 2d 599 (U.S. 2016) as support for that proposition.
In Montgomery, the Supreme Court held that when a new substantive rule of
constitutional law controls the outcome of a case, the Constitution requires state
collateral review courts to give retroactive effect to that rule . .!slat 729. The creation of a
new substantive rule which would apply retroactively would be an exception to the one-
year deadline for the filing of any and all post-conviction petitions for relief. 42 Pa.C.S.
§9545{b}(iii). If Appellant could demonstrate the existence of a new substantive rule with
1
See Motion to Reconsider/Reopen, filed 1;11arch 29, 2016, at ~l
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retroactive effect, he would be permitted to file a P.C.R.A. petition that was otherwise-
untimely.
However, Appellant's reliance on Montgomery is misplaced. The holding of
Montgomery that Appellant relies upon, that a new substantive rule with retroactive
effect must be reviewed by a state collateral review court, merely reflects the U.S.
Supreme Court adoption of an exception already codified by 42 Pa.C.S. §9545(b)(iii). In
other words, Appellant is merely attempting to argue that his petition is now timely
because the U.S. Supreme Court decided to adopt a timeliness exception that was
already existent in Pennsylvania. Notably, the Superior Court found that Appellant
specifically failed to raise any exceptions under §9545(b) in his second P .C. R.A.
petition, which led to that petition being found untimely." Appellant's failure to raise any
exception under §9545(b) in his second P.C.R.A. includes the failure to raise the very
exception that Appellant now avers would render his third P.C.R.A. timely. Therefore,
this court should be affirmed on appeal.
B. Whether the court abused its discretion by denying Appellant's P.C.R.A.
Next, Appellant challenges whether this court abused its discretion by denying
his most recent P.C.R.A. petition. When reviewing the denial of a P.C.R.A. petition, the
standard is whether the trial court's determinations are supported by the record and are
free of legal error. Com. v. Roney, 79 A.3d 595, 603 (Pa. 2013). Next, the reviewing
court will examine the timeliness of the appellant's petition, to determine whether there
is jurisdiction to reach the P.C.R.A. petition's merits. Com. v. Ali, 86 A.3d 173, 177 (Pa.
2014). Any P.C. R.A. petition must be filed within one year of the date the judgment
~~~~~~~~~~. . . . . -· ... -·-· . - -· .
2
See Memorandum Opinion, filed July 24, 2014, No. 1941 MDA 2013, at S.
becomes final, unless the petition alleges and the petitioner proves that an exception
applies. 42 Pa.C.S. §9545(b)(1).
To begin, this court points to the Superior Court's previous finding in this case,
that the deadline for Appellant to timely file any P.C.R.A. petition was September 29,
2011.3 Appellant is now five years beyond that period and, as discussed above, raised
no allegation regarding the presence of a §9545(b) exception other than a bald
statement that because the U.S. Supreme Court adopted the same timeliness exception
in 2016 that was available by Pennsylvania statute to Appellant in 2013, Appellant's
P.C.R.A. is now timely. Appellant, frankly, had two prior opportunities to raise a
§9545(b)(1 )(iii) exception and failed to do so.
This Court finds that Appellant's third P.C.R.A. petition is untimely. The trial court
has no power to address the merits of an untimely P.C.R.A. petition. Com. v. Gamboa-
Taylor, 753 A.2d 780, 783 (Pa. 2000). Here, Appellant merely avers that the U.S.
Supreme Court adopted a new substantive rule with retroactivity which would make his
otherwise-untimely P.C.R.A. petition timely. However, that averment entirely neglects
the fact that the exact same relief was already available to Appellant when he filed his
previous P.C.R.A. petitions. Because the remedy Appellant claims is "new" was already
available to him under §9545(b)(1)(iii), it cannot be the basis for finding an otherwise-
untimely P.C.R.A. petition to be timely. Therefore, this court should be affirmed on
appeal.
C. Whether Appellant's right to represent himself was violated
In his final error complained of on appeal, Appellant contends that this court
violated ·Appellant's right-to represent himself. Appellant argues thathe never
3
See Memorandum Opinion, supra note 2, at 5.
A-- s
affirmatively requested that counsel be appointed, and that the court never held a
hearing to determine whether Appellant desired the assistance of counsel. As a result, it
is Appellant's position that the act of being represented by counsel against his wishes is
reversible error.
In order to proceed prose, a defendant must knowingly, intelligently and
voluntarily waive his constitutional right to the assistance of counsel. Com. v. Starr, 541
Pa. 564, 581 (1995). If that waiver is found to not be knowing, intelligent and voluntary,
it may be denied by the trial court. lit_ There are also a list of factors which the trial court
must establish that the defendant understands. ls, at 581-582. If any of those factors
were not met, the trial court would have to deny the defendant's request to appear pro
se.
Here.' as Appellant contends, no such evaluation of whether Appellant waived his
right to counsel was performed. However, upon review of the record, it appears that was
because Appellant never expressed the intent to waive his right to counsel prior to the
instant P.C.R.A. petition. Because Appellant never expressed a desire to waive his right
to counsel, no examination of that desire was ever performed. Rather Appellant, having
enjoyed the benefit of counsel through all the underlying proceedings and multiple years
of litigated P.C.R.A. petitions, avers for the first time on appeal that this court erred in
appointing counsel to represent him. Moreover, Pa. H.Crim.P. 904(E) requires the
appointment of counsel for a defendant whenever the interests of justice require it.
Here, Appellant presented to this court his third P.C.R.A. petition, which was denied and
subsequently appealed. As Appellant is indigent, appointed counsel best served the
A-6
interests of justice by permitting Appellant's errors complained of on appeal to be
presented in a clear and concise manner.
Further, this Court notes that beyond this specific error presented on appeal, the
remainder of Appellant's concise statement is carried over from his previous pro se
1925(b) statement. Appellant's argument appears to be somewhat circular. Appellant
claims now he was deprived of his right to represent himself by the court's act of
appointing counsel. Appointed counsel adopted verbatim the prose arguments
Appellant made to this court regarding his P.C.R.A. petition. Appellant does not even
reproduce those errors, but merely incorporates them as an attachment to the final
1925(b) statement. The very errors the Defendant wanted to raise prose, have been
raised and found to be legally insufficient to grant him relief. This Court cannot see how
Appellant's constitutional right to represent himself was violated, when Appellant's
counsel presented the same arguments to the court that Appellant presented himself.
Thus, this court should properly be affirmed on appeal.
Conclusion
Here, Appellant contests the denial of his third P.C.R.A. petition. Appellant's
P.C.R.A. petition is, by now, over five years untimely and Appellant does not aver any
exceptions to §9545(b) that would render this petition timely. Instead, Appellant merely
avers that the U.S. Supreme Court adopted an exception to timeliness that was already
present and available to Appellant by statute. Because Appellant pointed to no new
substantive rule that applied retroactively to his case, the instant P.C.R.A. petition was
properly denied as untimely. Because Appellant's P.C.R.A. petition was untimely, this
court was without jurisdiction to consider the merits of the petition, meaning that the·
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denial of .the petition was not an abuse of discretion. Finally, Appellant failed to express
an intent to waive his right to representation by counsel until the instant appeal, and
further the Rules of Criminal Procedure allow the appointment of counsel when doing so
best serves the interests of justice. Thus, this court should properly be affirmed on
appeal.
By the Court,
District Attorney's Office
Arla Wall~r. Esquire
Deputy Public Defender
Romell Thompson, JF-6190
SCI - Benner
301 Institution Drive
Bellefone, PA 16823
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