J-S64039-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

CHARLES SCOTT THOMAS

                            Appellant                No. 863 WDA 2014


                    Appeal from the PCRA Order April 7, 2014
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0005110-2002
              CP-02-CR-0005111-2002; CP-02-CR-0005113-2002


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J.

MEMORANDUM BY GANTMAN, P.J.:                    FILED NOVEMBER 19, 2014

        Appellant, Charles Scott Thomas, appeals from the order entered in

the Allegheny County Court of Common Pleas, which denied his first petition

brought pursuant to the Post Conviction Relief Act (“PCRA).1 We affirm.

        The relevant facts and procedural history of this case are as follows.

On February 2, 2004, Appellant entered an open guilty plea to five (5)

counts of involuntary deviate sexual intercourse—forcible compulsion, three

(3) counts of incest, and two (2) counts of rape—forcible compulsion.

Appellant’s guilty plea stemmed from the sexual abuse of his three biological

children, all of whom were under the age of thirteen (13) at the time of the

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1
    42 Pa.C.S.A. §§ 9541-9546.
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abuse.     The Commonwealth subsequently withdrew the rape charges in

exchange for Appellant’s agreement not to withdraw his guilty plea and to

proceed to sentencing on the remaining charges.           The court sentenced

Appellant on May 27, 2004, to an aggregate term of thirty (30) to sixty (60)

years’ imprisonment. Appellant did not file any post-sentence motions or a

direct appeal.

        Appellant filed a counseled PCRA petition on February 10, 2014. The

PCRA court issued on February 18, 2014, notice of its intent to dismiss

Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907.

Appellant responded to the Rule 907 notice on March 24, 2014, and the

PCRA court denied Appellant’s petition as untimely on April 7, 2014.

Appellant timely filed a counseled notice of appeal on May 6, 2014.      The

PCRA court did not order Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant filed

none.

        Appellant raises the following issues for our review:

           DOES THE COMPLETE ABSENCE OF DISCOVERY IN THIS
           MATTER DEMONSTRATE NOT ONLY THE FAILURE OF
           DEFENSE COUNSEL BUT ALSO A WILLFUL VIOLATION OF
           BRADY BY THE COMMONWEALTH, AND DO THE NEWLY
           DISCOVERED FACTS OF THE FAILURES OF COUNSEL AND
           PROSECUTION OVERCOME THE JURISDICTIONAL TIME
           BAR FOR [APPELLANT]?

           AS A CASE OF FIRST IMPRESSION, WHERE [APPELLANT’S]
           PRIOR COUNSEL OBTAINED NO DISCOVERY AT TRIAL AND
           THE COMMONWEALTH FAILED TO PRODUCE ANY
           DISCOVERY PRE- OR POST-TRIAL, IS [APPELLANT]

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          ENTITLED TO BROAD DISCOVERY TO ELUCIDATE A
          POSSIBLE   BRADY      VIOLATION    AND     OTHER
          CONSTITUTIONAL ERRORS IN THE CASES FILED AGAINST
          HIM, OR AT LEAST TO A HEARING TO DETERMINE
          WHETHER DISCOVERY IS NEEDED?

          IS APPELLANT…AFTER BEING REPRESENTED BY MULTIPLE
          DEFENSE ATTORNEYS, ALL OF WHOM FAILED TO REQUEST
          OR REQUIRE DISCOVERY FROM THE COMMONWEALTH,
          ENTITLED TO A HEARING ON THE FUNDAMENTAL RIGHT
          OF COMPETENT DEFENSE COUNSEL, BASED ON THE LACK
          OF EVIDENCE FOR HIS PLEA AND THOSE COUNSELS’
          ADVICE TO PLEAD GUILTY TO SERIOUS FELONIES?

          IS THE RIGHT TO A SPEEDY TRIAL, AND SPECIFICALLY
          PA.R.CRIM.P. 600, VIOLATED WHEN A PERIOD OF NON-
          EXCLUDABLE TIME AND A CONFLAGRATION OF OTHER
          EVENTS DEMONSTRATE INEFFECTIVENESS OF COUNSEL
          AND UNDUE DELAY BY THE COMMONWEALTH?

(Appellant’s Brief at 8).

      As a preliminary matter, we must determine whether Appellant timely

filed his current PCRA petition. Commonwealth v. Harris, 972 A.2d 1196

(Pa.Super. 2009), appeal denied, 603 Pa. 684, 982 A.2d 1227 (2009).

Pennsylvania law makes clear no court has jurisdiction to hear an untimely

PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837 A.2d 1157

(2003).   The most recent amendments to the PCRA, effective January 16,

1996, provide that a PCRA petition, including a second or subsequent

petition, shall be filed within one year of the date the underlying judgment

becomes final. 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Bretz, 830

A.2d 1273 (Pa.Super. 2003). A judgment is deemed final “at the conclusion

of direct review, including discretionary review in the Supreme Court of the


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United States and the Supreme Court of Pennsylvania, or at the expiration of

time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3).

      The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition

will be excused.   42 Pa.C.S.A. § 9545(b)(1).     To invoke an exception, a

petition must allege and the petitioner must prove:

         (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;

         (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.A. § 9545(b)(1)(i)-(iii).    Additionally, a petitioner asserting a

timeliness exception must file a petition within sixty (60) days of the date

the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2). “As such,

when a PCRA petition is not filed within one year of the expiration of direct

review, or not eligible for one of the three limited exceptions, or entitled to

one of the exceptions, but not filed within 60 days of the date that the claim

could have been first brought, the trial court has no power to address the

substantive merits of a petitioner’s PCRA claims.”       Commonwealth v.


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Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783 (2000).

      Instantly, Appellant’s judgment of sentence became final on or about

June 26, 2004, upon expiration of the time to file a direct appeal. Appellant

filed his PCRA petition on February 10, 2014, more than nine (9) years after

his judgment of sentence became final. Accordingly, Appellant’s petition is

patently untimely. See 42 Pa.C.S.A. § 9545(b)(1). Appellant attempts to

allege governmental interference and newly discovered facts to excuse the

untimeliness of his PCRA petition.   See 42 Pa.C.S.A. § 9545(b)(1)(i)-(ii).

Appellant claims the prosecution failed to disclose exculpatory evidence

under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215

(1963), and that this “evidence” is newly discovered and could not have

been previously discovered with due diligence.        See 42 Pa.C.S.A. §

9545(b)(1)(i)-(ii).     Nevertheless, Appellant maintains he cannot know

specifically what the newly discovered facts are because the Commonwealth

has yet to disclose the alleged exculpatory evidence. Therefore, Appellant’s

bald assertions of governmental interference and newly discovered facts do

not meet the exceptions to the PCRA’s timeliness requirements. Moreover,

as a general rule, the “entry of a guilty plea constitutes a waiver of all

defects and defenses except lack of jurisdiction, invalidity of the plea, and

illegality of the sentence.”   See Commonwealth v. Main, 6 A.3d 1026,

1028 (Pa.Super. 2010). Accordingly, we affirm.

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/19/2014




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