Com. v. Brown, J. ( 2015 )

J-S65015-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JONATHAN BROWN,
Appellant No. 2559 EDA 2014
Appeal from the PCRA Order Entered August 6, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0206201-1992
BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 01, 2015
Appellant, Jonathan Brown, appeals pro se from the August 6, 2014
order denying, as untimely, his third petition for relief filed under the Post
Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546. We affirm.
On June 29, 1992, Appellant pled guilty to first-degree murder and
possessing an instrument of crime. He was sentenced that same day to life
imprisonment without the possibility of parole. Appellant filed an appeal to
this Court, and we affirmed his judgment of sentence on February 7, 1994.
Commonwealth v. Brown, No. 2941 Philadelphia 1992, unpublished
memorandum (Pa. Super. filed February 7, 1994). The record does not
indicate that Appellant filed a petition for allowance of appeal with our
Supreme Court. Consequently, his judgment of sentence became final on
March 9, 1994. See 42 Pa.C.S. § 9545(b)(3) (directing that judgment of
J-S65015-15
sentence becomes final at the conclusion of direct review or the expiration of
the time for seeking the review); Pa.R.A.P. 1113(a) (stating, “a petition for
allowance of appeal shall be filed with the Prothonotary of the Supreme
Court within 30 days of the entry of the order of the Superior Court sought
to be reviewed”).
Between 1999 and 2003, Appellant filed two PCRA petitions, both of
which the PCRA court denied. Appellant did not appeal to this Court from
the denial of either of those petitions. On September 30, 2013, he filed the
pro se PCRA petition underlying the present appeal. On July 3, 2014, the
PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss
Appellant’s petition as untimely. On July 18, 2014, Appellant filed a pro se
motion for an extension of time within which to respond to the court’s Rule
907 notice. The court did not expressly rule on that motion.1 On August 6,
2014, the PCRA court issued an order dismissing Appellant’s petition as
untimely.
Appellant filed a timely, pro se notice of appeal and the PCRA court
issued a Pa.R.A.P. 1925(a) opinion, despite not ordering Appellant to file a
Rule 1925(b) concise statement of errors complained of on appeal. Herein,
Appellant presents five issues for our review. In four of those issues, he
asserts that his plea counsel acted ineffectively, resulting in a violation of his
____________________________________________
1
Appellant does not challenge the court’s failure to rule on this motion on
appeal.
-2-
J-S65015-15
constitutional rights, and causing him to enter an involuntary plea. See
Appellant’s Brief at 6. Appellant also avers that the evidence was insufficient
to convict him of first-degree murder or possessing an instrument of a crime
because he was acting in self-defense. Id.
This Court’s standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). The PCRA court’s findings will not
be disturbed unless there is no support for the findings in the certified
record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).
We must begin by addressing the timeliness of Appellant’s petition,
because the PCRA time limitations implicate our jurisdiction and may not be
altered or disregarded in order to address the merits of a petition. See
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (stating
PCRA time limitations implicate our jurisdiction and may not be altered or
disregarded to address the merits of the petition). Under the PCRA, any
petition for post-conviction relief, including a second or subsequent one,
must be filed within one year of the date the judgment of sentence becomes
final, unless one of the following exceptions set forth in 42 Pa.C.S. §
9545(b)(1)(i)-(iii) applies:
(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
-3-
J-S65015-15
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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke one of
these exceptions “shall be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, Appellant’s judgment of sentence became final on March 9,
1994.2 Consequently, his current PCRA petition, filed on September 30,
2013, is facially untimely and, for this Court to have jurisdiction to review
____________________________________________
2
We acknowledge that,
[i]n cases where the judgment of sentence was final prior to the
1995 enactment of the timeliness requirement, a first petition is
considered timely if filed within one year of the effective date of
the enactment. However, there is no grace period for filing
subsequent PCRA petitions.
Commonwealth v. Abu-Jamal, 833 A.2d 719, 724 (Pa. 2003) (citations
omitted; emphasis in original). Clearly, this exception to the timeliness
requirement of section 9545(b) does not apply to this, Appellant’s third,
PCRA petition, which was filed in 2013.
-4-
J-S65015-15
the merits thereof, Appellant must prove that he meets one of the
exceptions to the timeliness requirements set forth in 42 Pa.C.S. § 9545(b).
Appellant has failed to satisfy this burden, as he makes no attempt to
argue that any of the claims he raises satisfy an exception set forth in
section 9545(b)(1). Instead, Appellant simply contends that his plea
counsel acted ineffectively, and that the evidence was insufficient to sustain
his convictions. “It is well[-]settled that allegations of ineffective assistance
of counsel will not overcome the jurisdictional timeliness requirements of the
PCRA.” Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005)
(citations omitted). Additionally, a challenge to the sufficiency of the
evidence, in and of itself, does not satisfy any of the above-stated timeliness
exceptions.
Because Appellant has not proven the applicability of one of the
exceptions set forth in 42 Pa.C.S. § 9545(b)(1), we are without jurisdiction
to consider the merits of his petition. Therefore, we affirm the PCRA court’s
order denying his petition as untimely.3
Order affirmed.
____________________________________________
3
On September 18, 2015, Appellant filed with this Court a pro se document
entitled, “Motion for Evidentiary Hearing,” wherein he reiterates his claims of
plea counsel’s ineffectiveness, adds novel assertions in that same vein, and
requests a hearing to address these issues. For the reasons set forth infra,
we are without jurisdiction to consider the merits of Appellant’s
ineffectiveness claims. Accordingly, Appellant’s September 18, 2015 motion
is denied.
-5-
J-S65015-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/1/2015
-6-