J-S60042-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 CHRISTIAN SCOTT THOMAS                :
                                       :
                   Appellant           :   No. 741 MDA 2019

           Appeal from the PCRA Order Entered April 22, 2019
  In the Court of Common Pleas of Lancaster County Criminal Division at
                    No(s): CP-36-CR-0000805-2001

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 CHRISTIAN SCOTT THOMAS                :
                                       :
                   Appellant           :   No. 742 MDA 2019

           Appeal from the PCRA Order Entered April 22, 2019
  In the Court of Common Pleas of Lancaster County Criminal Division at
                    No(s): CP-36-CR-0001147-2001

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 CHRISTIAN SCOTT THOMAS                :
                                       :
                   Appellant           :   No. 743 MDA 2019

           Appeal from the PCRA Order Entered April 22, 2019
  In the Court of Common Pleas of Lancaster County Criminal Division at
                    No(s): CP-36-CR-0002952-2001

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
J-S60042-19


                                        :
              v.                        :
                                        :
                                        :
 CHRISTIAN SCOTT THOMAS                 :
                                        :
                   Appellant            :   No. 744 MDA 2019

           Appeal from the PCRA Order Entered April 22, 2019
  In the Court of Common Pleas of Lancaster County Criminal Division at
                    No(s): CP-36-CR-0002928-2001

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 CHRISTIAN SCOTT THOMAS                 :
                                        :
                   Appellant            :   No. 745 MDA 2019

           Appeal from the PCRA Order Entered April 22, 2019
  In the Court of Common Pleas of Lancaster County Criminal Division at
                    No(s): CP-36-CR-0003140-2001

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 CHRISTIAN SCOTT THOMAS                 :
                                        :
                   Appellant            :   No. 746 MDA 2019

           Appeal from the PCRA Order Entered April 22, 2019
  In the Court of Common Pleas of Lancaster County Criminal Division at
                    No(s): CP-36-CR-0002950-2001

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :

                                  -2-
J-S60042-19


    CHRISTIAN SCOTT THOMAS                       :
                                                 :
                       Appellant                 :   No. 747 MDA 2019

              Appeal from the PCRA Order Entered April 22, 2019
     In the Court of Common Pleas of Lancaster County Criminal Division at
                       No(s): CP-36-CR-0003050-2001


BEFORE: SHOGAN, J., STABILE, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                         FILED DECEMBER 10, 2019

        In these consolidated cases, Christian Scott Thomas (Thomas) appeals

pro se from the order dismissing his serial petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, as untimely.           We

affirm.

        A previous panel of this Court set forth the relevant background of this

case as follows:

              Throughout the time from May 13, 2000 to January 19,
        2001, [Thomas] committed numerous counts of burglary,
        robbery, and rape. [Thomas] was 14 and 15 years old during the
        time of his offenses. On June 6, 2003, [Thomas] entered a guilty
        plea and was later sentenced to 66-150 years’ incarceration. This
        Court affirmed the initial sentencing on August 6, 2004.

               After the decision by this Court to affirm the original
        sentence imposed by the trial court, [Thomas] filed a writ of
        habeas corpus in the United States District Court for the Eastern
        District of Pennsylvania. The District Court ordered that the trial
        court resentence [Thomas]. The District Court held that the
        aggregate sentence of 66-150 violated [Thomas’] rights against
        cruel and unusual punishment based upon the United States
        Supreme Court decision in Graham v. Florida, 560 U.S. 48, 75
        (2010). On October 2, 2013, the trial court resentenced [Thomas]
        to a new aggregate sentence of 40-80 years’ incarceration.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

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J-S60042-19


        Commonwealth v. Thomas, 105 A.3d 32 (Pa. Super. 2014)
        (unpublished memorandum at 1)[, appeal denied, 101 A.3d 786
        (Pa. 2014)].       We affirmed [Thomas’] second judgment of
        sentence, finding that it afforded him a reasonable opportunity to
        be released during his lifetime. On December 3, 2014, [Thomas]
        filed a pro se petition for collateral relief. The court appointed new
        counsel, and on March 6, 2015, counsel filed an amended PCRA
        petition, which asserted that he was denied effective assistance of
        counsel during his October 2013 resentencing. . . .

(Commonwealth v. Thomas, 2016 WL 5865086, at *1 (Pa. Super. filed Aug.

16, 2016) (unpublished memorandum) (footnote omitted)).                 This Court

affirmed the PCRA court’s order on August 16, 2016.

        On March 25, 2019, Thomas filed the instant pro se PCRA petition that

was later amended. After issuing notice of its intent to do so,1 on April 22,

2019, the PCRA court dismissed the petition as untimely because more than

one year after his appeal on his resentencing resolved in this Court. Moreover,

the PCRA court found that Thomas did not even allude to any exception to this

timeliness requirement. This appeal followed.2

        On appeal, without mentioning that the PCRA court dismissed his

petition as untimely, Thomas again challenges his aggregate sentence,

arguing that it is manifestly excessive because the sentencing court failed to

consider the mitigating circumstances of his case, including his history of

____________________________________________


1   See Pa.R.Crim.P. 907(1).

2 Thomas and the PCRA court complied with Rule 1925.                See Pa.R.A.P.
1925(a)-(b).




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substance abuse, lack of mental capacity, young age at the time of the

offenses, and difficult family background. (See Thomas’ Brief, at 4, 7).3,         4



However, “[b]efore 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). “A

PCRA petition, 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). Our Supreme Court “has repeatedly

stated it is the appellant’s burden to allege and prove that one of the



____________________________________________


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

4 We note that although Thomas plainly filed a PCRA petition, he oscillates
between treating it as such and as a direct appeal. However, as previously
noted, this Court already affirmed his second judgment of sentence.
Furthermore, “[t]his Court has repeatedly held that any petition filed after the
judgment of sentence becomes final will be treated as a PCRA petition.”
Commonwealth v. Whiteman, 204 A.3d 448, 449 n.2 (Pa. Super. 2019),
appeal denied, 2019 WL 3311368 (Pa. filed July 24, 2019) (citation omitted).




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timeliness exceptions applies.”         Commonwealth v. Hawkins, 953 A.2d

1248, 1253 (Pa. 2008) (citation omitted).

       Instantly, Thomas’ PCRA petition is patently untimely because he filed

it approximately four years after his judgment of sentence became final.5

Therefore, we have no jurisdiction to consider it unless Thomas pled and

proved one of the three limited exceptions to the PCRA’s one-year time

limitation set forth in Section 9545:

       (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. § 9545(b)(1)(i)-(iii).

       However, as the PCRA court points out, Thomas has not pled the

applicability of any of these exceptions. (See PCRA Court Opinion, 7/03/19,




____________________________________________


5Specifically, Thomas’ judgment of sentence became final on January 6, 2015,
when his time to file a petition for writ of certiorari with the United States
Supreme Court expired. See Sup. Ct. R. 13; 42 Pa.C.S. § 9545(b)(3).




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at 4).6     Because Thomas’ PCRA petition is untimely, and he has failed to

establish an exception to the PCRA’s timeliness requirements, we lack

jurisdiction to consider the merits of his claims. See Graves, supra at 1185.

Accordingly, we affirm the order of the PCRA court dismissing Thomas’

petition.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/10/2019




____________________________________________


6  In his appeal, Thomas cites to Commonwealth v. Felder, 2017 WL
6505643 (Pa. Super. 2017) (unreported), allocatur granted, 18 EAP 2018.
Allocator was granted to review the constitutionality of a sentence of 50-years
to life for a juvenile in light of its decision in Commonwealth v. Batts, 163
A.3d 410 (Pa. 2017). Batts held that under Miller v. Alabama, 132 S. Ct.
2455 (2012), the Eighth Amendment forbids mandatory life sentencing
without the possibility of parole for juvenile offenders. We held that that when
a juvenile convicted of homicide and subjected to a discretionary sentence
that “may approach, but does not clearly exceed life expectancy” that
sentence does not violate Miller, the Eighth Amendment to the U.S.
Constitution or Article 1, Section 13 of the Pennsylvania Constitution. In
effect, Thomas argues that because the Supreme Court granted allocator, his
sentence of 40 to 80 years of incarceration was tantamount to a life sentence.
The Felder case was argued in the Pennsylvania Supreme Court on
September 11, 2019. However, until an opinion is issued, our decision in
Felder is controlling. Moreover, until that occurs, even if raised, it does not
fall within 42 Pa.C.S. § 9545 (b)(l)(iii).

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