J-S85042-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    JAMES S. THOMPSON

                             Appellant                No. 1318 WDA 2017


               Appeal from the PCRA Order Entered June 30, 2017
                 In the Court of Common Pleas of Greene County
     Criminal Division at Nos: CP-30-CR-0000187-2009; CP-30-CR-0000272-
         2009; CP-30-CR-0000297-2009; and CP-30-CR-0000422-2009


BEFORE: BOWES, PANELLA, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                            FILED MARCH 27, 2018

        Appellant James S. Thompson appeals from the June 30, 2017 order1 of

the Court of Common Pleas of Greene County, which denied his request for

collateral relief under the Post Conviction Relief Act (the “Act”), 42 Pa.C.S.A.

§§ 9541-46. Upon review, we affirm.

        The facts and procedural history of this case are undisputed. Briefly, on

August 20, 2010, Appellant entered into a negotiated guilty plea to various

crimes, including several counts of driving under the influence (“DUI”) in

violation of Motor Vehicle Code, at the above-referenced dockets. Consistent

with his negotiated guilty plea, the trial court sentenced Appellant to an
____________________________________________


1 To the extent Appellant attempts to challenge his August 20, 2010
judgments of sentence, we decline to entertain the challenge as the judgments
have become final.
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aggregate term of nineteen months and nine days to five years’ imprisonment,

which Appellant was ordered to serve consecutive to his Fayette County

sentence, at docket number 527 of 2008. Appellant did not file a direct appeal

and his judgments of sentence became final on September 20, 2010.

       On August 8, 2016, Appellant pro se filed the instant PCRA petition,

seeking relief, inter alia, based on the United States Supreme Court’s decision

in Birchfield v. North Dakota, 136 S. Ct. 2160 (2016).2 The PCRA court

appointed counsel, who filed an amended petition. Thereafter, following the

PCRA court’s May 5, 2017 issuance of a Pa.R.Crim.P. 907 notice of its intent

to dismiss the petition, the PCRA court denied Appellant PCRA relief on June

30, 2017. Appellant timely appealed to this Court.

       The PCRA court ordered Appellant to file a Pa.R.A.P. 1925(b) statement

of errors complained of on appeal. Appellant complied, raising four assertions

of error. In response, the PCRA court issued a Pa.R.A.P. 1925(a) opinion,

adopting the reasons outlined in its May 5, 2017 Rule 907 order. In particular,

the PCRA court concluded that, because the United States Supreme Court

issued Birchfield on June 23, 2016, Appellant’s PCRA petition met the PCRA’s

timeliness exception. On the merits, however, the PCRA court concluded that



____________________________________________


2Birchfield held that the Fourth Amendment to the United States Constitution
does not permit warrantless blood tests incident to arrests for drunk driving
and that a state may not criminalize a motorist’s refusal to comply with a
demand to submit to blood testing. Birchfield, 136 S. Ct. at 2185-86.



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Appellant was not entitled to relief because Birchfield cannot be applied

retroactively on collateral review.

       On appeal,3 Appellant essentially raises three issues for our review.4

First, Appellant argues that the PCRA court erred in finding that he “was not

entitled to a new trial under the law announced by the United States Supreme

Court in Birchfield.” Appellant’s Brief at 17. Second, he argues that PCRA

court “erred in finding that Appellant’s trial counsel was not ineffective for

failing to properly seek suppression of inadmissible evidence [(results of the

blood test)], and allowing that evidence to be used against [Appellant] to

induce a guilty plea.” Id. at 24. Third, Appellant argues that the PCRA court

“erred in finding that Appellant’s plea was not unlawfully induced, where the

circumstances make it likely that the inducement caused Appellant to plead

guilty and [Appellant] is innocent.” Id.

       We note that Appellant’s claims are intertwined as they all derive from

the Birchfield decision. At the core, Appellant argues that Birchfield must

be applied retroactively on collateral review and that, once applied, Birchfield

would render his negotiated guilty plea invalid because the plea was premised


____________________________________________


3 “On appeal from the denial of PCRA relief, our standard of review requires
us to determine whether the ruling of the PCRA court is supported by the
record and free of legal error.” Commonwealth v. Widgins, 29 A.3d 816,
819 (Pa. Super. 2011).
4 We note that Appellant’s brief does not include a statement of questions
involved as required by Pa.R.A.P. 2111(a)(4) and Pa.R.A.P. 2116(a). We,
however, decline to quash this appeal as our review of the claims is not
impeded.

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on the results of an illegal blood draw to which Appellant never consented.

Likewise, Appellant argues that his trial counsel was ineffective because he

failed to challenge the voluntariness of Appellant’s consent to the blood draw.

      The PCRA contains the following restrictions governing the timeliness of

any PCRA petition.

      (b) Time for filing petition.--

      (1) 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;

            (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.

      (2) Any petition invoking an exception provided in paragraph (1)
      shall be filed within 60 days of the date the claim could have been
      presented.

      (3) For purposes of this subchapter, 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.A. § 9545(b) (emphasis added). As our Supreme Court explained:

      Subsection (iii) of Section 9545(b)(1) has two requirements.
      First, it provides that 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 provided in this
      section. Second, it provides that the right “has been held” by

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      “that court” to apply retroactively. Thus, a petitioner must prove
      that there is a “new” constitutional right and that the right “has
      been held” by that court to apply retroactively. The language “has
      been held” is in the past tense. These words mean that the
      action has already occurred, i.e., “that court” has already
      held the new constitutional right to be retroactive to cases
      on collateral review. By employing the past tense in writing
      this provision, the legislature clearly intended that the right was
      already recognized at the time the petition was filed.

Commonwealth v. Copenhefer, 941 A.2d 646, 649–50 (Pa. 2007), quoting

Commonwealth v. Abdul–Salaam, 812 A.2d 497, 501 (Pa. 2002) (internal

corrections omitted) (emphasis added).         Moreover, because the plain

statutory language of Section 9545 requires that the PCRA petition “allege” all

elements of the statutory exception, it is clear that, to properly invoke the

“newly recognized constitutional right” exception, a petitioner must plead each

of the above-stated elements in the petition.     42 Pa.C.S.A. § 9545(b)(1).

Section 9545’s timeliness provisions are jurisdictional. Commonwealth v.

Ali, 86 A.3d 173, 177 (Pa. 2014).

      Here, as stated earlier, the record reflects Appellant’s judgments of

sentence became final on September 20, 2010.               See 42 Pa.C.S.A.

§ 9545(b)(3); Pa.R.A.P. 903(a).      Because Appellant had one year from

September 20, 2010, to file his PCRA petition, the current filing is facially

untimely given it was filed on August 8, 2016.

      The one-year time limitation, however, can be overcome if a petitioner

alleges and proves one of the three exceptions set forth in Section

9545(b)(1)(i)-(iii) of the PCRA. Here, Appellant argues that he is entitled to

relief under Section 9545(b)(1)(iii) because the United States Supreme Court

created a new rule in Birchfield that has been held to apply retroactively. He

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argues that he raised this issue on collateral review within sixty days of the

issuance of Birchfield. Irrespective of whether Appellant complied with the

sixty-day requirement of Section 9545(b)(2), he is not entitled to PCRA relief.

To date, neither the United States Supreme Court nor the Pennsylvania

Supreme Court has held that Birchfield applies retroactively to cases pending

on collateral review. On the contrary, we recently held that “Birchfield does

not apply retroactively in Pennsylvania to cases pending on collateral review.”

Commonwealth v. Olson, ___ A.3d __, PA Super 31, 2018 WL 847859, at

*4 (filed February 14, 2018); see Commonwealth v. Wilcox, 174 A.3d 670,

673 (Pa. Super. 2017) (noting that Birchfield is not to be applied retroactively

to cases on collateral review). Accordingly, the trial court did not abuse its

discretion in denying Appellant relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/2018




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