Com. v. Thomas, W. ( 2020 )

J-S26043-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WAYNE THOMAS :
:
Appellant : No. 1904 WDA 2019
Appeal from the PCRA Order Entered November 13, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0009083-1988
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WAYNE THOMAS :
:
Appellant : No. 1905 WDA 2019
Appeal from the PCRA Order Entered November 13, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0009080-1988
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WAYNE THOMAS :
:
Appellant : No. 1906 WDA 2019
Appeal from the PCRA Order Entered November 13, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0009082-1988
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
J-S26043-20
:
v. :
:
:
WAYNE THOMAS :
:
Appellant : No. 1907 WDA 2019
Appeal from the PCRA Order Entered November 13, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0010630-1988
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
CONCURRING STATEMENT BY McLAUGHLIN, J.: FILED JULY 17, 2020
I agree with the Majority that the PCRA court did not abuse its discretion
in dismissing Thomas’s petition as untimely. However, I disagree with the
Majority’s statement that Thomas has not attempted to plead any exception
to the PCRA’s time-bar. Rather, I would conclude that Thomas attempted to
plead the governmental interference exception, but was unsuccessful in doing
do. Accordingly, I concur in the Majority’s decision.
In his PCRA petition, Thomas indicated that he had met the
requirements for the governmental interference exception because the trial
court declined to rule on his pro se motion to withdraw his nolo contendere
plea. See Petition, 3/27/19, at 3. Thomas argues this constituted interference
by government officials because it infringed on his right to pursue the issue,
and he seems to contend that his judgment of sentence therefore never
became final such that the subject PCRA petition was timely. See id. at 4.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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J-S26043-20
However, it would appear that Thomas raised the issue of the sentencing
court’s decision not to rule on his pro se motion to withdraw his plea in his
first PCRA petition. See PCRA Petition, 1/18/91, at 3; Amended PCRA Petition,
4/19/91, at 2. The denial of that PCRA petition is the final word on that issue
and its rejection of his argument that the sentencing court ought to have
entertained his pro se motion is law of the case. It cannot now serve as a basis
for the governmental interference exception to the PCRA’s time-bar.
Moreover, the sentencing judge properly refused to consider Thomas’s
pro se motion as he had counsel at the time, and perhaps even more to the
point, the sentencing court’s refusal to entertain his pro se motion to withdraw
his plea in no way interfered with his presentation of his PCRA claim. Thus,
contrary to Thomas’s arguments, his judgment of sentence thus became final
in 1991. Thomas has not pleaded and proven any of the exceptions to the
PCRA’s time-bar, and the PCRA court did not abuse its discretion in denying
Thomas’s petition as untimely. Accordingly, I respectfully concur.
Judge Murray joins the concurring statement.
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