Com. v. Thomas, C.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CURTIS TYRONE THOMAS, JR. :
:
Appellant : No. 2161 EDA 2022
Appeal FROM the PCRA Order Entered July 20, 2022
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0002351-2010,
CP-15-CR-0004682-2010
BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.
MEMORANDUM BY BOWES, J.: FILED MARCH 21, 2023
Curtis Tyrone Thomas, Jr. appeals pro se from the order dismissing his
petition pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.
By way of background, Appellant entered a negotiated guilty plea at two
related docket numbers on February 23, 2011. At docket number 2351 of
2010, he pled guilty to one count of possessing an instrument of crime (“PIC”)
and was sentenced to five years of probation (“PIC Docket”). At docket
number 4682 of 2010, Appellant pled guilty to one count of robbery and one
count of conspiracy to commit robbery and was sentenced, respectively, to
three to ten years of incarceration and ten years of probation (“Robbery
Docket”). All terms were set to run consecutively, for a total sentence of three
to ten years of incarceration followed by fifteen years of probation. Appellant
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did not file post-sentence motions or a direct appeal to this Court in either
case.
With respect to the Robbery Docket, Appellant timely filed his first PCRA
petition pro se in October 2011, asserting that the victim did not identify him
as the robber at the preliminary hearing and that he was innocent. Counsel
was appointed and filed a petition to withdraw pursuant to Commonwealth
v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550
A.2d 213 (Pa.Super. 1988) (en banc). After filing Rule 907 notice, the PCRA
court dismissed Appellant’s petition without a hearing and granted counsel’s
petition to withdraw. Appellant did not seek relief in this Court.1
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1 Chronologically, the next pertinent entries pertain to a probation/parole
violation. From what we can glean, Appellant’s probationary term at each
docket was revoked and reinstated on June 12, 2017, as a result of a violation.
No post-sentence relief was sought and Appellant does not now challenge the
violation proceedings or sentence. The certified record contains minimal detail
surrounding these proceedings, but it is nonetheless clear that in 2017,
Appellant had not yet commenced the probationary tail of his sentence.
Pursuant to Commonwealth v. Simmons, 262 A.3d 512 (Pa.Super.
2021) (en banc), Appellant was not required to comply with the conditions of
probation before he began serving the probationary terms. Therefore, his
noncompliance did not permit the anticipatory revocation of his orders of
probation. Ordinarily, the resulting illegal sentence would obligate us to sua
sponte vacate the revocation sentence and remand for reinstatement of the
original probation sentence. See Commonwealth v. Conley, 286 A.3d 313,
318 (Pa.Super. 2022) (holding that “because [Conley] had not yet begun
serving his consecutive terms of probation at the time he violated the
conditions of his [county intermediate punishment], he was not yet required
to comply with the conditions of his consecutive terms of probation [and] . . .
we are constrained to vacate the July 15, 2021 judgment of sentence and
remand for the trial court to reinstate the original . . . orders imposing
consecutive terms of probation”). However, as discussed infra, Appellant’s
(Footnote Continued Next Page)
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As to the PIC Docket, Appellant pro se filed his first PCRA petition in
October 2020. Although he only listed the PIC Docket on the pro se form and
the proceedings unfolded solely on that docket, the underlying claim related
to both dockets. Specifically, Appellant argued that his original sentence was
illegal because his PIC and conspiracy convictions should have merged with
his robbery conviction for sentencing. The PCRA court appointed counsel, who
filed a Turner/Finley letter based on Appellant’s petition being untimely filed
without any applicable exception. After providing notice of its intent to dismiss
the petition without a hearing because it was untimely, the PCRA court
dismissed the petition and granted counsel’s request to withdraw. As before,
Appellant did not seek relief in this Court.
Instead, on January 20, 2022, Appellant pro se filed the PCRA petition
that is the subject of this appeal. Again, Appellant filed the petition only at
the PIC Docket, despite raising the same challenge to the legality of his
original sentence at both dockets and adding a claim that prior counsel was
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PCRA petition that forms the basis of this appeal was untimely filed.
Accordingly, this Court lacks jurisdiction to address even glaring illegality
issues. See Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999)
(“Although legality of sentence is always subject to review within the PCRA,
claims must still first satisfy the PCRA’s time limits or one of the exceptions
thereto.” (citation omitted)). With all that being said, we observe that the
revocation court, by reinstating the original probationary terms, imposed the
remedy that we would have ordered on remand. Thus, Appellant’s revocation
sentence does not run afoul of either the spirit or, ultimately, the letter of the
Simmons holding as he was not sentenced anew following the anticipatory
probation violations, but instead only had his original probationary terms
reinstated.
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ineffective for failing to raise the issue in the trial court or on direct appeal.
The PCRA court again issued Rule 907 notice because the petition was
untimely, but this time directed the clerk of courts to docket the petition at
both the PIC Docket and the Robbery Docket. As a result, the matter has
thereafter proceeded at both dockets. Appellant filed two responses, arguing
the merits of the underlying claims, and the PCRA court dismissed his petition.
Appellant timely filed a single notice of appeal from the order dismissing
his petition at both docket numbers, in apparent violation of Commonwealth
v. Walker, 185 A.3d 969 (Pa. 2018) and Pa.R.A.P. 341. Both Appellant and
the PCRA court complied with Pa.R.A.P. 1925. Appellant raises the following
issues for our consideration:
1) Did the lower court err when it failed to grant relief where
[Appellant] was sentenced to an illegal sentence?
2) Did the lower court err when it failed to grant relief where
[Appellant’s] charges of robbery, crim[inal] conspiracy and
possessing instrument of a crime should have merged but
didn’t, resulting in an illegal sentence?
3) Was [Appellant’s] petition for PCRA timely filed under one or
more of the exceptions listed under 42 Pa.C.S. § 9545(b)?
4) Did the trial court err in [its] failure to articulate sufficient
reason in support of the sentence?
5) Was [Appellant’s] counsel ineffective in raising this issue at
sentencing or direct appeal and did not inform [Appellant] of
legality of sentence thus hindering any due diligence in appeal
matters?
Appellant’s brief at 2 (capitalization altered). At the outset, we must overcome
two procedural hurdles before we may reach the merits of Appellant’s issues.
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First, because of the apparent Walker violation, this Court issued an
order directing Appellant to show cause as to why the appeal should not be
quashed. Appellant responded that there was a breakdown in the court
system. This Court discharged the show-cause order and referred the matter
to the instant merits panel. The Note to Rule 341 and the holding in Walker
“require a bright-line rule that where one or more orders resolves issues
arising on more than one docket or relating to more than one judgment,
separate notices of appeal must be filed.” Commonwealth v. Larkin, 235
A.3d 350, 352 (Pa.Super. 2020) (en banc) (cleaned up). However, this Court
“may overlook the requirements of Walker where. . . a breakdown occurs in
the court system, and a defendant is misinformed or misled regarding his
appellate rights.” Id. at 354. Here, the PCRA court’s dismissal order advised
Appellant that “he ha[d] thirty days from the date of this order to file an
appeal[.]” Order, 7/20/22 (emphasis added, cleaned up). Accordingly, we
agree with Appellant that the PCRA court misadvised him that he only needed
to file one notice of appeal from the order dismissing his PCRA petition as to
both dockets. Finding that there was a breakdown with respect to this issue,
we decline to quash.
Proceeding over that first impediment, we next must determine whether
Appellant’s petition was timely filed, as neither this Court nor the PCRA court
has jurisdiction to consider an untimely PCRA petition. See Commonwealth
v. Ballance, 203 A.3d 1027, 1030-31 (Pa.Super. 2019). All PCRA petitions,
including second or subsequent petitions, must be filed within one year of the
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date that the underlying judgment of sentence becomes final. See 42 Pa.C.S.
§ 9545(b)(1). The PCRA statute provides that “a judgment becomes final at
the conclusion of direct review, . . . or at the expiration of time for seeking
the review.” 42 Pa.C.S. § 9545(b)(3).
Instantly, Appellant challenges the original February 23, 2011 judgment
of sentence, which became final on both dockets on March 25, 2011, or thirty
days after the time for filing a direct appeal in this Court expired. See
Pa.R.A.P. 903. Thus, to be timely, any PCRA petition had to be filed within
one year, or by March 26, 2012.2 The instant petition, filed in 2022, was
patently untimely. Therefore, Appellant had the burden to plead and prove
one of the enumerated exceptions to the PCRA’s time-bar before the PCRA
court could consider the merits of any of his claims. In this respect, the PCRA
statute provides as follows:
Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the
petitioner proves that:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation
of the claim in violation of the Constitution or laws of this
Commonwealth or the Constitution or laws of the United
States;
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2 Since the thirtieth day fell on a Sunday, we utilize the next business day for
computation purposes. See 1 Pa.C.S. § 1908 (“When any period of time is
referred to in any statute, . . . [and w]henever the last day of any such period
shall fall on Saturday or Sunday, or on any day made a legal holiday by the
laws of this Commonwealth or of the United States, such day shall be omitted
from the computation.”).
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(ii) the facts upon which the claim is predicated were
unknown to the petitioner and could not have been
ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States or
the Supreme Court of Pennsylvania after the time period
provided in this section and has been held by that court to
apply retroactively.
42 Pa.C.S. § 9545(b)(1). A petitioner invoking one of these exceptions must
file a petition “within one year of the date the claim could have been
presented.” 42 Pa.C.S. § 9545(b)(2).
In the case sub judice, Appellant failed to invoke any of the timeliness
exceptions in his pro se petition. In subsequent correspondence, he claimed
that counsel’s ineffectiveness prevented him from timely filing a PCRA petition
and that his subsequent learning of the alleged illegality of his sentence
constituted a newly-discovered fact. See Response 2/4/22 (“I did not know
about the consecutive sentencing . . . until I maxed out my parole in 2020,
thus hindering any effort to discover that I was illegally sentenced.”);
Response 7/15/22 (“By my counsel being law intelligent and still not informing
me of the illegal sentence, that in itself is ineffective assistance of counsel
thus hindering my appeal process and/or discovery of the case law that led
me here.”); Notice of Appeal, 8/12/22 (asserting the newly-discovered facts
exception and arguing that counsel did not inform him at the time of sentence
of the legality of the sentence and “counsel was ineffective in assisting [him]
in the knowledge of the legality of the sentence”); Rule 1925(b) Statement,
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9/2/22 (claiming counsel “did not inform defendant of the legality of the
sentence thus hindering due diligence and discovery of this issue”). On
appeal, Appellant does not address the timeliness of his PCRA petition, instead
solely arguing the merits of his merger claim.
With respect to the newly-discovered facts exception, a petitioner must
plead and prove that:
(1) the facts upon which the claim is predicated were unknown
and (2) could not have been ascertained by the exercise of due
diligence. Due diligence requires reasonable efforts by a
petitioner, based on the particular circumstances, to uncover facts
that may support a claim for collateral relief, but does not require
perfect vigilance or punctilious care.
Commonwealth v. Hart, 199 A.3d 475, 481 (Pa.Super. 2018) (cleaned up,
emphasis in original). The PCRA statute “clearly and unambiguously requires
any petition filed pursuant thereto to ‘be filed within one year of the date the
judgment becomes final, unless the petition alleges and the petitioner
proves’ one of the three exceptions quoted above. 42 Pa.C.S.
§ 9545(b)(1)[.]” Commonwealth v. Derrickson, 923 A.2d 466, 468
(Pa.Super. 2007) (cleaned up, emphasis in original). In other words, it is
solely to the petition that a PCRA court looks to determine if a petitioner has
pled and proved an exception to the PCRA’s time bar. See id. (affirming
dismissal of Derrickson’s PCRA petition as untimely where he failed to allege
an exception in his petition, alleged an exception for the first time in response
to the court’s notice of intent to dismiss, and did not seek leave to amend his
petition to include an allegation that one of the exceptions applied).
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Herein, Appellant failed to plead, much less prove, an exception in his
petition. However, even if we were to consider the totality of his
correspondence following the filing of the instant PCRA petition, we would still
conclude that he failed to plead or prove an applicable exception. It is well-
settled that “a claim of ineffective assistance of counsel does not save an
otherwise untimely petition for review on the merits.” Commonwealth v.
Fahy, 737 A.2d 214, 223 (Pa. 1999). Insofar as Appellant claims that his
discovery of case law renders his untimely petition timely, “[o]ur Supreme
Court has held that subsequent decisional law does not amount to a new fact
under section 9545(b)(1)(ii) of the PCRA.” Commonwealth v. Brandon, 51
A.3d 231, 235 (Pa.Super. 2012) (cleaned up).
Finally, Appellant signed the guilty plea colloquy, which set forth the
negotiated, consecutive sentencing scheme detailed hereinabove. See Guilty
Plea Colloquy, 2/23/11, at 3-4. Moreover, he was present in open court when
the court explained the negotiated sentencing agreement and sentenced him
accordingly. See N.T., 2/23/11, at 17 (“After the ten year parole period is
up, son, then you’re under my supervision for 15 years.”), 19 (imposing “ten
years of probation consecutive to the parole period on count one robbery” and
“five years of probation consecutive to the probation imposed on count seven,
the conspiracy count[,]” for “a cumulative sentence of three to ten years in
prison followed by 15 years of probation”). While the legal import of those
statements may not have impressed upon Appellant at that time, the fact of
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his negotiated, consecutive sentences was unequivocally known to Appellant
at the time he entered his plea. See Commonwealth v. Marshall, 947 A.2d
714, 721–22 (Pa. 2008) (“[T]he newly-discovered facts exception is not
focused on newly discovered or newly willing sources for ‘facts’ that were
already known.” (emphasis in original)). Therefore, neither his recent
realization of the consecutive nature of his probation sentences nor his reading
of the guilty plea transcript can constitute newly-discovered facts.
Based on the foregoing, Appellant has failed to plead and prove an
exception to the PCRA’s time-bar. Accordingly, the PCRA court did not err in
dismissing his PCRA petition as untimely filed. Therefore, we affirm the order
of the PCRA court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/21/2023
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