Com. v. Thomas, G. (memorandum)
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J-S40026-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. GAREY THOMAS, Appellant No. 2223 MDA 2013 Appeal from the PCRA Order November 14, 2013 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0001553-1984 BEFORE: BENDER, P.J.E., BOWES, and PANELLA, JJ. MEMORANDUM BY BOWES, J.: FILED JULY 23, 2014 Garey Thomas appeals from the PCRA order entered November 14, 2013, dismissing his serial PCRA petition as untimely. We affirm. A jury found Appellant guilty of murder on March 14, 1985. The court sentenced him to a mandatory term of life imprisonment. This Court affirmed on direct appeal and the Pennsylvania Supreme Court denied Commonwealth v. Thomas, 554 A.2d 1045 (Pa.Super. 1988) (unpublished memorandum), allowance of appeal denied, 553 A.2d 967 (Pa. 1988). Appellant filed a pro se PCRA petition on May 30, 1990, and was appointed counsel. Appellant submitted a pro se amended petition on July 9, 1990, and counsel filed a memorandum of law on behalf of Appellant. The PCRA court denied PCRA relief on July 21, 1992, after a hearing held on April 4, 1992. Appellant did not appeal. J-S40026-14 Appellant filed the instant petition on May 23, 2012. Despite not being automatically entitled to counsel, the court appointed counsel. Counsel filed a petition to withdraw and no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). The PCRA court issued a Pa.R.Crim.P. 907 notice of intent withdraw. Appellant filed a response and the PCRA court entered a final order on November 14, 2013. This timely appeal ensued. Appellant presents three issues for our consideration. P.C.R.A. [p]etition without first appointing a substitute counsel to file an [a]mended [p]etition? [2.] Did trial counsel provide appellant with ineffective rights under the Sixth Amendment protections? [3.] Should the [l]ower [c]ourts have appointed substitute counsel for appellant so counsel can file an amended petition? same claim. Appellant asserts that based on Pa.R.Crim.P. 904, once the court appointed him an attorney, he was entitled to counsel throughout his post-conviction proceedings, including any appeal. According to Appellant, the PCRA court disagreed with Turner/Finley failed to appoint substitute counsel. -2- J-S40026-14 expressly agreed with Turner/Finley Turner/Finley court lacks jurisdiction President Judge Joseph Madenspacher or the exhibits thereto leads the court to disagree with the above-stated conclusions reached by [Turner/Finley counsel]. Id. at 2. The court in its notice permitted counsel to withdraw. Once an attorney adequately complies with Turner/Finley, a petitioner is not entitled to the appointment of new counsel. Commonwealth v. Maple, 559 A.2d 953 (Pa.Super. 1989); see also Commonwealth v. Rykard, 55 A.3d 1177, 1183 n.1 (Pa.Super. 2012). Accordingly, Appellant is not entitled to counsel for purposes of litigating this appeal or a remand to relitigate his serial PCRA petition. Appellant also contends that trial counsel was ineffective in failing to advise him to accept a plea deal of ten to twenty years where trial counsel allegedly incorrectly asserted that such a period of incarceration would be the maximum sentence he would receive if convicted. In order for a collateral petition to be timely under the PCRA, it must be filed within one -3- J-S40026-14 9545(b)(1). Where a defendant was convicted before the effective date of the 1995 PCRA time-bar amendment, a petitioner could timely file a petition if it was his first and was filed by January 16, 1997. Commonwealth v. Sneed, 45 A.3d 1096, 1102 n.5 (Pa. 2012); Commonwealth v. Thomas, 718 A.2d 326 (Pa.Super. 1998) (en banc). Here, Appellant could only file a timely petition by asserting one of three timeliness exceptions. Those exceptions include interference by government officials, newly-discovered facts that were unknown to the petitioner and which could not have been ascertained with due diligence, or a new constitutional right held to apply retroactively. 42 Pa.C.S. §§ 9545(b)(1)(i)-(iii). Any claim arguing an exception to the time-bar must be filed within sixty days of the date it could have been presented. 42 Pa.C.S. § 9545(b)(2). Supreme Court decisions in Lafler v. Cooper, 132 S.Ct. 1376 (2012), and Missouri v. Frye, 132 S.Ct. 1399 (2012), which were decided on March 21, 2012. Relying on the dissenting opinions of Justice Antonin Scalia, Appellant maintains that those decisions are new constitutional rules. However, he does not argue that these decisions are retroactive. Regardless, this Court has held that these decisions do not announce new constitutional rules of -4- J-S40026-14 law. Commonwealth v. Feliciano, 69 A.3d 1270 (Pa.Super. 2013).1 Thus, Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/23/2014 ____________________________________________ 1 We add that under Pennsylvania law, it has been longstanding law that counsel can be ineffective for failing to properly advise his client regarding plea deals. Cf. Commonwealth v. Korb, 617 A.2d 715 (Pa.Super. 1992); Commonwealth v. Copeland, 554 A.2d 54 (Pa.Super. 1988); Commonwealth v. Napper, 385 A.2d 521 (Pa.Super. 1978). -5-
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