HomeMy WebLinkAboutCP-21-CR-0002705-2008
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CP-21-CR-2705-2008
:
: CHARGE: 1. CRIMINAL CONSPIRACY TO
: UNLAWFUL DELIVERY, MANUFACTURE,
: OR POSSESSION WITH INTENT TO
: DELIVER A SCHEDULE I AND/OR II,
v. : CONTROLLED SUBSTANCE;
: 2. UNLAWFUL DELIVERY OR
: MANUFACTURE OR POSSESSION WITH
: INTENT TO DELIVER A SCHEDULE II,
: CONTROLLED SUBSTANCE – COCAINE
: 3. UNLAWFUL DELIVERY OR
: MANUFACTURE OR POSSESSION WITH
: INTENT TO DELIVER A SCHEDULE I,
: CONTROLLED SUBSTANCE
ROMELL THOMPSON :
OTN: L442499-1 : AFFIANT: TRP. JAMES BORZA
IN RE: OPINION PURSUANT TO PA. R. A. P. 1925
Ebert, J., January 10, 2014 –
Romell Thompson (hereinafter “Defendant”) appeals pro se the denial of his Pro
Se Motion for Post-Conviction Collateral Relief (“PCRA”). Defendant specifically
complains of the following errors:
1. Did the court abuse it’s [sic] discretion and/or commit an error of law by
denying Petitioner’s, claim on a PCRA that legality of the sentence he
received was greater than lawful maximum?
2. Did the court abuse it’s [sic] discretion and/or commit an error of law by
denying Petitioner’s claim that the sentencing court did not have
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jurisdiction to sentence Petitioner?
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Concise Statement of Matters, received Nov. 18, 2013
Procedural History
On June 25, 2009, a jury found Defendant guilty of the above captioned charges.
Defendant was sentenced on August 25, 2009. On Count 2, Defendant was sentenced
to five to ten years. On Count 3, Defendant was sentenced to five to ten years to run
consecutive to Count 2. These were mandatory sentences. At Count 1, Defendant was
sentenced to pay the costs of prosecution. This was a mitigated range sentence
because his total aggregate period of incarceration for these charges is ten to twenty
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years.
After his Post Sentence Motions were denied, Defendant filed an appeal of his
conviction to the Superior Court on October 16, 2009. The Superior Court affirmed
Defendant’s conviction. See Commonwealth v. Thompson, 11 A.3d 1043 (Pa. Super.
2010)(unpublished memorandum). Defendant then filed his first PCRA on April 14,
2011. In his 2011 PCRA, Defendant only argued that his trial counsel was ineffective
for failing to file an Allowance of Appeal to the Supreme Court. This PCRA was denied
on January 24, 2012. The Superior Court quashed Defendant’s appeal of the PCRA as
untimely because it was not filed within thirty days of the underlying order. Defendant
filed a Motion for Reconsideration, which was denied on February 2, 2013.
Defendant then filed the instant, and his second, PCRA pro se on October 1,
2013. This PCRA was denied on October 11, 2013. Defendant then filed a Notice of
Appeal on October 30, 2013, and a Concise Statement of Matters on November 19,
2013.
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In Re: Sentencing, Aug. 25, 2009, 9-10
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Discussion
As a threshold matter, “a second or subsequent petition for post-conviction relief
will not be entertained ‘unless a strong prima facie showing is offered to demonstrate
that a miscarriage of justice may have occurred.’” Commonwealth v. Szuchon, 633
A.2d 1098, 1099 (Pa. 1993)(quoting Commonwealth v. Lawson, 549 A.2d 107 (Pa.
1988)). To meet this standard, a defendant must show either “(a) that the proceedings
resulting in his conviction were so unfair that a miscarriage of justice occurred which no
civilized society can tolerate, or (b) that he is innocent of the crimes charged.” Id. at
1100.
This is Defendant’s second PCRA. In his pro se filing, Defendant does not argue
and offers no evidence that the proceedings resulting in his conviction were so unfair
that a miscarriage of justice occurred nor that he is innocent of the crimes for which he
was convicted. Defendant merely argues that his sentence was unlawful and that this
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Court lacked jurisdiction to sentence him. As Defendant has not made a prima facie
showing that a miscarriage of justice occurred, his second PCRA was properly
dismissed.
However, even considering the errors complained of, Defendant’s second PCRA
must fail because it is entirely frivolous and lacks any merit whatsoever. Defendant’s
first error complained of is that his sentence was greater than the lawful maximum. 35
Pa.C.S.A. § 780-113(f)(1) states that anyone convicted of subsection (a)(30)
[manufacture, delivery, or possession with intent to manufacture or deliver a controlled
substance] with respect to a Schedule I or II controlled substance shall be sentenced to
imprisonment not exceeding fifteen years. Defendant was convicted of two counts
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Motion for Post Conviction Collateral Relief, filed Oct. 1, 2013
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under subsection (a)(30) and was sentenced to five to ten years on each count to run
consecutively. Even though Defendant’s aggregate sentence is ten to twenty years, his
sentence on each individual count did not exceed fifteen years and was a lawful
sentence. Additionally “[in] determining the sentence[s] to be imposed the court…may
impose them consecutively or concurrently.” 42 Pa.C.S.A. § 9721(a). Defendant’s
sentence was lawful.
Defendant appears to argue that this Court miscalculated and applied his prior
record score when sentencing because the charges all occurred during the same
transaction. It should be noted that prior to these charges the Defendant had eight
separate criminal convictions in the State of New Jersey and had a prior record score
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for these charges of 5. There was nothing unlawful about Defendant’s sentence. This
Court did not err.
Defendant’s second error complained of is that this Court lacked subject matter
jurisdiction to sentence him. This Court did not err. All courts of common pleas have
subject matter jurisdiction in cases under the Crimes Code. Commonwealth v. Bethea,
828 A.2d 1066, 1074 (Pa. 2003). Furthermore, it is alleged that Defendant committed
these crimes within Cumberland County. This Court had proper jurisdiction to sentence
Defendant.
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In Re: Sentencing, Aug. 25, 2009, 12
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Conclusion
The denial of Defendant’s second PCRA should be affirmed because Defendant
has not made a prima facie showing that there was a miscarriage of justice.
Furthermore, the errors Defendant complained of completely lack merit because this
Court gave Defendant a lawful sentence and had proper jurisdiction to do so.
By the Court,
______________________
M. L. Ebert, Jr., J.
District Attorney’s Office
Romell Thompson, JF – 6190,
Pro Se, Defendant
SCI – Benner
301 Institution Drive
Bellefonte, PA 16823
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