Opinion
J-S48001-17 No. 49 MDA 2017
08-21-2017
COMMONWEALTH OF PENNSYLVANIA v. CHAPEL THOMPSON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order November 21, 2016
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0001017-2012, CP-36-CR-0001588-2011 BEFORE: OTT, J., STABILE, J., and PLATT, J. MEMORANDUM BY OTT, J.:
Retired Senior Judge assigned to the Superior Court.
Chapel Thompson appeals pro se from the order entered November 21, 2016, in the Court of Common Pleas of Lancaster County, that dismissed as untimely his second petition filed pursuant to the Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Thompson raises the following questions: (1) whether he was given notice of accusation pursuant to the Sixth Amendment of the United States Constitution and 18 Pa.C.S. § 104(3), (4); (2) whether the sentence imposed is illegal as it is a mandatory minimum sentence imposed pursuant to 42 Pa.C.S. § 9712.1, which is unconstitutional; (3) whether the sentence imposed without statutory authorization is an illegal sentence, which encompasses the [PCRA's] one-year exception and 60-day limitation; and (4) whether a claim challenging the sentence's statutory authorization allows the PCRA court to address the procedural and substantive claims sua sponte. See Thompson's Brief ("Statement of Questions Involved"). We affirm, based on the PCRA court's well reasoned opinion, filed November 21, 2016.
While the trial court docket indicates Thompson filed his pro se notice of appeal on December 27, 2016, the envelope used to mail the notice of appeal is included in the certified record and is postmarked December 21, 2016. Because Thompson is pro se and incarcerated, the "prisoner mailbox rule" applies, and his filing "is deemed filed as of the date it is delivered to the prison authorities for purposes of mailing or placed in the institutional mailbox, as evidenced by a properly executed prisoner cash slip or other reasonably verifiable evidence of the date that the prisoner deposited the pro se filing with the prison authorities." Pa.R.A.P. 121(a). See also Commonwealth v. Jones , 700 A.2d 423 (Pa. 1997). With the benefit of the "prisoner mailbox rule," Thompson's appeal was timely filed on December 21, 2016. See Pa.R.A.P. 903(a) (30-day appeal period).
The factual and procedural history of this case are fully set forth in the PCRA court's May 27, 2016, opinion, and there is no need to restate the background of this case. See PCRA Court Pa.R.CrimP. 907 Opinion, 5/27/2016, at 1-7.
Thompson filed his second PCRA petition pro se on March 24, 2016, asserting he received an illegal sentence pursuant to Alleyne v. United States , 133 S. Ct. 2151 (2013). On May 27, 2016, the PCRA judge, the Honorable David L. Ashworth, issued Rule 907 notice of intent to dismiss, and Thompson filed a response on July 1, 2016. Thereafter, the PCRA court dismissed the petition without a hearing on November 21, 2016, finding that the petition was untimely. This appeal followed.
Under the "prisoner mailbox rule," we regard Thompson's second petition as filed on March 24, 2016, which is the post-mark date on the mailing envelope; the trial court docket reflects a filing date of March 28, 2016. See Footnote 1, supra.
Alleyne held "any fact that increases the mandatory minimum is an 'element' that must be submitted to the jury" to be determined under the reasonable-doubt standard. Id. at 2155.
On January 9, 2017, the PCRA court issued a "Pa.R.A.P. 1925(a) memorandum of opinion," stating that the PCRA court relied upon its opinion of November 21, 2016, to comply with Rule 1925(a). Pursuant to the "prisoner mailbox rule," Thompson filed a pro se Rule 1925(b) statement on January 13, 2017, as the mailing envelope bears a post-mark with that date. The PCRA court had not ordered Thompson to file a concise statement.
"Our review of a PCRA court's decision is limited to examining whether the PCRA court's findings of fact are supported by the record, and whether its conclusions of law are free from legal error." Commonwealth v. Cox , 146 A.3d 221, 226 n.9 (Pa. 2016) (citation omitted).
Upon our review of the record, the parties' briefs, and the relevant statutes and case law, we conclude the PCRA court properly determined the petition was untimely. See PCRA Court Opinion, 11/21/2016 at 3-5 (finding: (1) Thompson's legality of sentence claim is cognizable under the PCRA; however, the claim must first satisfy the PCRA's time limitations; (2) the PCRA's time restrictions are jurisdictional in nature; (3) Thompson's petition is facially untimely; (4) Thompson's claim does not satisfy the "new constitutional right" exception to the PCRA time bar because Alleyne and its progeny do not apply retroactively to cases on collateral review, Commonwealth v. Washington , 142 A.3d 810 (Pa. 2016); (5) Thompson's argument that prior counsel were ineffective for failing to challenge his sentence based on Alleyne does not satisfy the "governmental interference" exception because the PCRA provides that defense counsel are not "government officials"; (6) claims of prior counsel's ineffectiveness do not satisfy the "after-discovered evidence" exception and do not operate as an independent exception to the one-year jurisdictional time bar; and (7) because Thompson has failed to plead and prove an exception to the one-year filing requirement, the court lacks jurisdiction to address the merits of Thompson's claims).
As we agree with the PCRA court's sound analysis and conclude no further discussion is warranted, we affirm the dismissal of Thompson's second PCRA petition based upon the PCRA court's November 21, 2016 opinion.
The parties are directed to attach a copy of the PCRA court's November 21, 2016 opinion to this memorandum in the event of further proceedings.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/21/2017
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