Opinion
J-S52007-17 No. 867 MDA 2016
08-23-2017
COMMONWEALTH OF PENNSYLVANIA v. ROMELL THOMPSON, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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.:
Romell Thompson ("Thompson") appeals from the Order denying his third Petition filed pursuant to the Post Conviction Relief Act ("PCRA"). 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 Super. 2014) (unpublished memorandum at 1-3).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 third PCRA Petition. 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.
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.
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.
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?Brief for Appellant at 5 (some capitalization omitted).
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?
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).
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 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. 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 Petition, but did not do so until 2016. Thus, Thompson's Petition is facially untimely under the PCRA.
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. --------
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.
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. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/23/2017
Image materials not available for display.