J-S68001-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    :   IN THE SUPERIOR COURT OF
                                                    :        PENNSYLVANIA
                                                    :
                v.                                  :
                                                    :
                                                    :
    DUANE BROCK THOMAS                              :
                                                    :
                       Appellant                    :   No. 866 WDA 2017

                    Appeal from the PCRA Order May 8, 2017
    In the Court of Common Pleas of Washington County Criminal Division at
                       No(s): CP-63-CR-0000165-2009


BEFORE: GANTMAN, P.J.E., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                               FILED JANUARY 2, 2020

        The Appellant, Duane Brock Thomas (Thomas) appeals from the order

of the Washington County Court of Common Pleas (PCRA court) dismissing as

untimely his second petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. Because all claims in the second petition

were untimely and waived, the PCRA court’s order is affirmed.

                                               I.

        The PCRA court has summarized the pertinent facts of this appeal as

follows:

        After a jury trial, [Thomas] was found guilty on September 25,
        2009 of Rape, IDSI (two counts), Aggravated Assault (two
        counts), Simple Assault, Terroristic Threats, Unlawful Restraint,
        False Imprisonment and Recklessly Endangering Another Person.

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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     After the verdict, the Commonwealth filed a Notice Seeking
     Mandatory Sentence pursuant to 12 Pa.C.S. § 9712.

     [Thomas] was sentenced on January 22, 2010 by Judge Moschetta
     Bell who found that the [Thomas] “visibly possessed a gun” during
     the commission of the crimes of Rape and Aggravated Assault and
     sentenced [Thomas] to an aggregate sentence of 14½ years to 29
     years. [Thomas] filed a direct appeal. The Pennsylvania Superior
     Court affirmed the trial court on July 18, 2011. [Thomas] filed a
     petition for allowance of appeal to the Pennsylvania Supreme
     Court, which was denied on December 23, 2011. [Thomas] filed
     a pro se PCRA Petition on April 9, 2012. Counsel was appointed
     and an Amended PCRA Petition was filed.

     After a Notice of Intention to Dismiss was provided, the Court
     dismissed the PCRA Petition on February 28, 2013. [Thomas],
     with counsel, appealed; the Pennsylvania Superior Court, in a
     non-precedential decision, on February 27, 2014 affirmed the
     PCRA Court’s ruling. [Thomas] filed a Petition for Allowance of
     Appeal to the Pennsylvania Supreme Court, which was denied on
     September 10, 2014.

     [Thomas] filed a second PCRA on August 24, 2016, which is
     presently before the Court. [Thomas] asserted two grounds as
     the basis for his PCRA relief. His first claim was that his sentence
     was unconstitutional as the mandatory minimum sentence
     imposed by the judge was predicated on facts as found by the
     Court rather than found by the jury as now constitutionally
     required. The second issue raised by [Thomas] was that he was
     subject to “an unconstitutional trial based on no blacks on the
     jury.” He claimed that a Batson violation occurred during jury
     selection. The relief requested was a correction of his sentence.
     [Thomas] also requested the appointment of counsel.

     On February 14, 2017, this Court denied [Thomas’] request for
     counsel. The Court also filed on that date a Notice of Intention to
     Dismiss the PCRA Petition without a hearing. The Court found that
     the second claim was not filed within the one year requirement
     and that the exception to the one year rule alleged by [Thomas],
     that a new constitutional right has been recognized, was not
     applicable. Therefore, the Court found that the Court had no
     jurisdiction and dismissed that claim. The Court also dismissed
     the first issue, finding that the Alleyne decision did not apply


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       retroactively to collateral attacks on mandatory             minimum
       sentences. Alleyne v. U.S., 133 S. Ct. 2151 (2013).

       In its Notice of Intention to Dismiss the PCRA, the Court directed
       [Thomas] to respond to the proposed dismissal within thirty (30)
       days. No response was received. The Court reviewed the docket,
       the Pennsylvania Superior Court’s decision on the direct, this
       Court’s 22 page 1925 Opinion regarding the First PCRA and the
       Superior Court’s decision affirming the same, and finding that the
       issues raised in the Second PCRA involve legal rather than factual
       issues, the Court dismissed the PCRA without a hearing on May 8,
       2017. A timely appeal ensued.

PCRA Court 1925(a) Opinion, at 1-2.1

       In   his   appellate   brief,   Thomas    contends   that   he   received   an

unconstitutional mandatory minimum sentence under Alleyne; his trial was

unconstitutional due to a Batson2 violation; and he is entitled to relief due to

a violation of the Supremacy Clause. See Appellant’s Brief, at 1-2. Thomas

argues that his second PCRA petition should be treated as timely filed because

he relies on newly created constitutional rights that apply retroactively. See

id., at 7-12.3


____________________________________________


1This Court affirmed Thomas’ judgment of sentence in Commonwealth v.
Thomas, 32 A.3d 274 (Pa. Super. 2011) (unpublished memorandum),
appeal denied, 34 A.3d 83 (Pa. 2011). This Court affirmed the denial of
Thomas’ first PCRA petition in Commonwealth v. Thomas, No. 490 WDA
2013 (Pa. Super. February 27, 2014).

2Batson v. Kentucky, 476 U.S. 79 (1982) (holding that prosecutors may not
use peremptory strikes on potential jurors in a racially motivated manner).

3 When reviewing issues arising from the denial of PCRA relief, we must
determine whether the PCRA court’s ruling is supported by the record and free



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                                               II.

         “Before we can address the merits of the issues raised, we must

determine whether Appellant has established that his PCRA petition was timely

filed,    as   the   time-bar    is   jurisdictional.   42   Pa.C.S.   §   9545(b).”

Commonwealth v. Graves, 197 A.3d 1182, 1185 (Pa. Super. 2018).                   All

PCRA petitions, “including a second or subsequent petition, shall be filed within

one year of the date the underlying judgment becomes final.” Id. (citation

omitted).      “A judgment 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. 42 Pa.C.S. § 9545(b)(3).” Commonwealth v. Hernandez, 79

A.3d 649, 650 (Pa. Super. 2013).

         Here, Thomas’ second PCRA petition is untimely because he filed it more

than one year after his judgment of sentence became final in 2012.              We,

therefore, have no jurisdiction to consider the grounds raised in the petition

unless Thomas can satisfy one of the three limited exceptions to the PCRA’s

time-bar:

         (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;


____________________________________________


of legal error. See Commonwealth v. Bush, 197 A.3d 285, 286–87 (Pa.
Super. 2018) (citation omitted).


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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)(i)-(iii). “It is the petitioner’s burden to allege and

prove that one of the timeliness exceptions applies.”        Commonwealth v.

Robinson, 139 A.3d 178, 186 (Pa. 2016) (citation omitted).4

       Thomas argues that he has satisfied the exception enumerated in

subsection 9545(b)(1)(iii) based on newly recognized constitutional rights

outlined in Alleyne, Batson, and the Supremacy Clause of the United States

Constitution. However, this exception to the PCRA’s time-bar is inapplicable

as to all of those claims.

       Our Supreme Court has expressly held “that Alleyne does not apply

retroactively to cases pending on collateral review[.]” Commonwealth v.

Washington, 142 A.3d 810, 820 (Pa. 2016); Commonwealth v. Miller, 102

A.3d 988, 995 (Pa. Super. 2014) (citations and internal quotation marks

omitted) (holding that a claim of an illegal sentence “in an untimely PCRA


____________________________________________


4 Effective December 24, 2018, Section 9545(b)(2) provides that “[a]ny
petition invoking an exception . . . shall be filed within one year of the date
the claim could have been presented.” Since Thomas filed his second PCRA
petition prior to the effective date of the above amendment, the earlier version
of Section 9545(b)(2) applies, giving him only 60 days to plead an exception
from the date it could have been asserted.


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petition for which no time-bar exception applies . . . depriv[es] the court of

jurisdiction over the claim.”).

       Moreover, the Batson case preceded Thomas’ jury trial by about a

decade, so clearly it did not create a new constitutional right that would satisfy

the PCRA’s time-bar exception in subsection 9545(b)(1)(iii).          None of the

authorities cited in Thomas’ brief hold that Batson established a new

constitutional right.

       As for the Supremacy Clause, Thomas has failed to state a cogent claim,

precluding relief on that basis. However, even if Thomas had stated a cogent

claim, the Supremacy Clause long preceded Thomas’ trial, and he cites no

subsequent authority which identifies a new right under that provision that

applies retroactively. Thus, because Thomas’ PCRA petition is untimely and

he has failed to establish an exception to the PCRA’s time-bar, we lack

jurisdiction to consider the merits of his claims, and the order on review must

stand.5

       Order affirmed.




____________________________________________


5 In addition to our lack of jurisdiction, Thomas has waived all the grounds in
his second PCRA petition because they could have been, but were not, raised
on direct appeal or in his first PCRA petition. See 42 Pa.C.S. § 9544(b) (“[A]n
issue is waived if petitioner could have raised it but failed to do so before trial,
at trial, during unitary review, on appeal or in a prior postconviction
proceeding.”); Pa.R.A.P. 302(a) (“Issues not raised in the lower court are
waived and cannot be raised for the first time on appeal.”).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/2/2020




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