Com. v. Thompson, C.

J-S48001-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHAPEL THOMPSON :
:
Appellant : No. 49 MDA 2017
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.: FILED AUGUST 21, 2017
Chapel Thompson appeals pro se from the order entered November
21, 2016,1 in the Court of Common Pleas of Lancaster County, that
dismissed as untimely his second petition filed pursuant to the Pennsylvania
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*
Retired Senior Judge assigned to the Superior Court.
1
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).
J-S48001-17
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.
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, 2016,2
asserting he received an illegal sentence pursuant to Alleyne v. United
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2
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.
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States, 133 S. Ct. 2151 (2013).3 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.4
“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
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3
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.
4
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.
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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.5
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5
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.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2017
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Circulated 07/28/2017 01:48 PM