J-S52007-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :          IN THE SUPERIOR COURT OF
                                            :                PENNSYLVANIA
             v.                             :
                                            :
ROMELL THOMPSON,                            :
                                            :
                   Appellant                :              No. 867 MDA 2016

                  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.:                             FILED AUGUST 23, 2017

        Romell Thompson (“Thompson”) appeals from the Order denying his

third Petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1 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(unpublished memorandum at 1-3).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




1
    See 42 Pa.C.S.A. §§ 9541-9546.
J-S52007-17


third PCRA Petition.2 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.3

      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?

      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?

Brief for Appellant at 5 (some capitalization omitted).

      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).



2
 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.

3
  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.


                                  -2-
J-S52007-17


      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



                                  -3-
J-S52007-17


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.4 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




4
 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.


                                  -4-
J-S52007-17


Petition, but did not do so until 2016. Thus, Thompson’s Petition is facially

untimely under the PCRA.

      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.




                                  -5-
J-S52007-17


     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.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/23/2017




                                -6-
                                                                               Circulated 08/03/2017 12:04 PM




COMMONWEAL TH                                  : IN THE COURT OF COMMON PLEAS OF
                                               : CUMBERLAND COUNTY, PENNSYLVANIA

                                               : CP - 21 - CR - 2705 - 2008


         v.                                    : CHARGES: (1) CRIMINAL CONSPIRACY TO
                                                              UNLAWFUL DELIVERY,
                                                              MANUFACTURE, OR
                                                              POSSESSION WITH INTENT
                                                              TO DELIVER A SCHEDULE I
                                                              AND/OR II C.S.
                                                          (2) UNLAWFUL DELIVERY OR
                                                              MANUFACTURE OR
                                                              POSSESSION WITH INTENT
                                                              TO DELIVER A SCHEDULE
                                                              II CONTROLLED
                                                              SUBSTANCE
                                                          (3) UNLAWFUL DELIVERY,
                                                              MANUFACTURE OR
                                                              POSSESSION WITH INTENT
                                                              TO DELIVER A SCHEDULE I
                                                              CONTROLLED SUBSTANCE
ROMELL THOMPSON
OTN: L442499-1                                   AFFIANT: TPR. JAMES M. BORZA

                    IN RE: OPINION PURSUANT TO PA. R.A.P. 1925Ca)

Ebert, J., November 22, 2016 -

         In this post-sentence appeal, Appellant challenges the denial of Post-Conviction

Relief Act petition, as well as violating Appellant's right to represent himself. This

opinion is written pursuant to Pa. R.A.P. 1925(a). Appellant's bases for appeal are as

follows:

    1.   Counsel incorporates paragraph 1 of Mr. Thompson's prose Appellant's Concise
         Statement of Errors on Appeal Per Pa. R.A.P. 1925(8), by reference, as though
         fully set forth herein at length. See Attachment "A". [wherein Appellant averred,
         "Whether the Court.abused.its_ discretion or __ committed _c1ri -~rr.o_r of lm,v__ qy denying
         the P.C.R.A. as untimely?"]


                                              A- -   1
   2. Counsel incorporates paragraph 2 of Mr. Thompson's      prose Appellant's Concise
       Statement of Errors on Appeal Per Pa. R.A.P. 1925(8), by reference, as though
       fully set forth herein at length. See Attachment "A". [wherein Appellant averred,
     / "Whether the court abused its' discretion or committed an error of law by denying
       the P.C.R.A. petitioner relief?"]

   3. The court violated Mr. Thompson's right to represent himself. The record does
      not show that Mr. Thompson affirmatively requested the assistance of counsel,
      nor did the court hold a hearing to determine if Mr. Thompson desired the
      assistance of counsel.

                                    Statement of Facts

        Rather than restate the facts of this matter from the beginning, I will note that the

Honorable Superior Court previously summarized the facts in its Opinion of July 24,

2014, wherein it affirmed the denial of Appellant's second P.C.R.A. petition. See

generally Memorandum Opinion, Filed July 24, 2014, No. 1941 MDA 2013 (Pet. for

allowance of appeal denied, November 24, 2014, at 654 MAL 2014). Here, the court

has before it Appellant's third P.C.R.A. petition stemming from Appellant's ~une 25,

2009, conviction and August 25, 2009, sentencing.

        Instantly, Appellant's Motion to Reopen/Reconsider was filed on March 29, 2016.

Appellant's Motion to Reopen/Reconsider was denied by Order of Court on March 31,

2016. Appellant's Notice of Appeal was filed on April 14, 2016. On May 20, 2016,

Appellant filed a Motion for Leave to Continue In Forma Pauperis, which was granted by

Order of Court dated May 25, 2016. On June 06, 2016, Appellant was ordered to file his

Pa. R.A.P. 1925(8) statement no later than June 27, 2016. Appellant subsequently

requested, and received, three extensions of time to file his Rule 1925(b) statement

(1) to July 15, 2016, (2) to August 10, 2016, and finally (3) to September 12, 2016.

Appellant's Rule 1925(8) statement was finally received by the court on September 12,

2016.

                                           ,4-   2
            In that interval, Appellant received court-appointed counsel by Order dated June

24, 2016. Appellant also filed a prose Rule 1925(8) statement on June 30, 2016, which

was incorporated into Appellant's final Rule 1925(8) filed on September 12, 2016.
                                                                      I

Additionally, on August 02, 2016, this court received a first notice from the Superior

Court that the record in the instant case was overdue. Appellant's final Rule 1925(8)

statement, filed on September 12, 2016, raises three issues for review, prompting this

court's Pa. RAP. 1925(a) opinion.

                                                     Discussion

           A. Whether Appellant's instant P.C.R.A. Petition is untimely

           The first error raised on appeal by Appellant is that this court improperly denied

as untimely Appellant's March 29, 2016, Motion to Reopen/Reconsider the denial of his

second P.C.R.A.          petition. Appellant contends that new review of his P.C.R.A. petition is

merited due to the denial of his previous petition being based on invalid grounds and

conclusions, including the conclusion that the P.C.R.A. was untimely filed.1 Appellant

cited to the recent U.S. Supreme Court case of Montgomery v. Louisiana, 136 S. Ct.

718, 193 L. Ed. 2d 599 (U.S. 2016) as support for that proposition.

           In Montgomery, the Supreme Court held that when a new substantive rule of

constitutional law controls the outcome of a case, the Constitution requires state

collateral review courts to give retroactive effect to that rule . .!slat 729. The creation of a

new substantive rule which would apply retroactively would be an exception to the one-

year deadline for the filing of any and all post-conviction petitions for relief. 42 Pa.C.S.

§9545{b}(iii). If Appellant could demonstrate the existence of a new substantive rule with



1
    See Motion to Reconsider/Reopen, filed 1;11arch 29, 2016, at ~l

                                                       A-3
    retroactive     effect, he would be permitted to file a P.C.R.A.                        petition that was otherwise-

untimely.

            However, Appellant's            reliance on Montgomery                 is misplaced.      The holding of

Montgomery            that Appellant relies upon, that a new substantive rule with retroactive

effect must be reviewed             by a state collateral review court, merely reflects the U.S.

Supreme Court adoption of an exception                             already codified by 42 Pa.C.S.            §9545(b)(iii).     In

other words, Appellant is merely attempting to argue that his petition                                 is now timely

because the U.S.           Supreme      Court decided to adopt a timeliness exception                          that was

already existent in Pennsylvania.                   Notably, the Superior             Court found that Appellant

specifically        failed to raise any exceptions                     under §9545(b) in his second         P .C. R.A.

petition,    which led to that petition             being found untimely."             Appellant's     failure to raise any

exception under §9545(b)              in his second P.C.R.A.                   includes the failure to raise the very

exception         that Appellant     now avers would render his third P.C.R.A.                        timely. Therefore,

this court should be affirmed on appeal.

            B. Whether the court abused its discretion by denying Appellant's P.C.R.A.

            Next, Appellant        challenges whether this court abused its discretion                         by denying

his most recent P.C.R.A.             petition. When reviewing the denial of a P.C.R.A.                          petition,     the

standard          is whether the trial court's determinations                    are supported       by the record and are

free of legal error. Com. v. Roney, 79 A.3d 595, 603 (Pa. 2013). Next, the reviewing

court will examine the timeliness                  of the appellant's           petition,    to determine    whether there

is jurisdiction       to reach the P.C.R.A.             petition's merits. Com. v. Ali, 86 A.3d               173, 177 (Pa.

2014).      Any P.C. R.A. petition must be filed within one year of the date the judgment

~~~~~~~~~~. . .                         .   . -· ... -·-· .   - -· .
2
    See Memorandum Opinion, filed July 24, 2014, No. 1941 MDA 2013, at S.
becomes final, unless the petition alleges and the petitioner proves that an exception

applies. 42 Pa.C.S. §9545(b)(1).

           To begin, this court points to the Superior Court's previous finding in this case,

that the deadline for Appellant to timely file any P.C.R.A.     petition was September 29,

2011.3 Appellant is now five years beyond that period and, as discussed above, raised

no allegation regarding the presence of a §9545(b) exception other than a bald

statement that because the U.S. Supreme Court adopted the same timeliness exception

in 2016 that was available by Pennsylvania statute to Appellant in 2013, Appellant's

P.C.R.A. is now timely. Appellant, frankly, had two prior opportunities to raise a

§9545(b)(1 )(iii) exception and failed to do so.

           This Court finds that Appellant's third P.C.R.A. petition is untimely. The trial court

has no power to address the merits of an untimely P.C.R.A. petition. Com. v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000). Here, Appellant merely avers that the U.S.

Supreme Court adopted a new substantive rule with retroactivity which would make his

otherwise-untimely P.C.R.A. petition timely. However, that averment entirely neglects

the fact that the exact same relief was already available to Appellant when he filed his

previous P.C.R.A. petitions. Because the remedy Appellant claims is "new" was already

available to him under §9545(b)(1)(iii), it cannot be the basis for finding an otherwise-

untimely P.C.R.A. petition to be timely. Therefore, this court should be affirmed on

appeal.

           C. Whether Appellant's right to represent himself was violated

           In his final error complained of on appeal, Appellant contends that this court

violated ·Appellant's right-to represent himself. Appellant argues thathe never
3
    See Memorandum Opinion, supra note 2, at 5.

                                                  A-- s
affirmatively requested that counsel be appointed, and that the court never held a

hearing to determine whether Appellant desired the assistance of counsel. As a result, it

is Appellant's position that the act of being represented by counsel against his wishes is

reversible error.

       In order to proceed prose, a defendant must knowingly, intelligently and

voluntarily waive his constitutional right to the assistance of counsel. Com. v. Starr, 541

Pa. 564, 581 (1995). If that waiver is found to not be knowing, intelligent and voluntary,

it may be denied by the trial court. lit_ There are also a list of factors which the trial court

must establish that the defendant understands. ls, at 581-582. If any of those factors

were not met, the trial court would have to deny the defendant's request to appear pro

se.

       Here.' as Appellant contends, no such evaluation of whether Appellant waived his

right to counsel was performed. However, upon review of the record, it appears that was

because Appellant never expressed the intent to waive his right to counsel prior to the

instant P.C.R.A. petition. Because Appellant never expressed a desire to waive his right

to counsel, no examination of that desire was ever performed. Rather Appellant, having

enjoyed the benefit of counsel through all the underlying proceedings and multiple years

of litigated P.C.R.A. petitions, avers for the first time on appeal that this court erred in

appointing counsel to represent him. Moreover, Pa. H.Crim.P. 904(E) requires the

appointment of counsel for a defendant whenever the interests of justice require it.

Here, Appellant presented to this court his third P.C.R.A. petition, which was denied and

subsequently appealed. As Appellant is indigent, appointed counsel best served the




                                            A-6
interests of justice by permitting Appellant's errors complained of on appeal to be

presented in a clear and concise manner.

       Further, this Court notes that beyond this specific error presented on appeal, the

remainder of Appellant's   concise statement is carried over from his previous pro se

1925(b) statement. Appellant's argument appears to be somewhat circular. Appellant

claims now he was deprived of his right to represent himself by the court's act of

appointing counsel. Appointed counsel adopted verbatim the prose arguments

Appellant made to this court regarding his P.C.R.A. petition. Appellant does not even

reproduce those errors, but merely incorporates them as an attachment to the final

1925(b) statement. The very errors the Defendant wanted to raise prose, have been

raised and found to be legally insufficient to grant him relief. This Court cannot see how

Appellant's constitutional right to represent himself was violated, when Appellant's

counsel presented the same arguments to the court that Appellant presented himself.

Thus, this court should properly be affirmed on appeal.

                                        Conclusion

       Here, Appellant contests the denial of his third P.C.R.A. petition. Appellant's

P.C.R.A.   petition is, by now, over five years untimely and Appellant does not aver any

exceptions to §9545(b) that would render this petition timely. Instead, Appellant merely

avers that the U.S. Supreme Court adopted an exception to timeliness that was already

present and available to Appellant by statute. Because Appellant pointed to no new

substantive rule that applied retroactively to his case, the instant P.C.R.A. petition was

properly denied as untimely. Because Appellant's P.C.R.A. petition was untimely, this

court was without jurisdiction to consider the merits of the petition, meaning that the·



                                          A-7
denial of .the petition was not an abuse of discretion. Finally, Appellant failed to express

an intent to waive his right to representation by counsel until the instant appeal, and

further the Rules of Criminal Procedure allow the appointment of counsel when doing so

best serves the interests of justice. Thus, this court should properly be affirmed on

appeal.

                                                   By the Court,




District Attorney's Office

Arla Wall~r. Esquire
Deputy Public Defender

Romell Thompson, JF-6190
SCI - Benner
301 Institution Drive
Bellefone, PA 16823
          \




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