Com. v. Johnson, R. ( 2014 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RICKY ALONZO JOHNSON, :
:
Appellant : No. 169 WDA 2014
Appeal from the PCRA Order December 4, 2013,
Court of Common Pleas, Allegheny County,
Criminal Division at No. CP-02-CR-0011960-2004
BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED NOVEMBER 12, 2014
Ricky Alonzo Johnson (“Johnson”) appeals from the order of court
dismissing his second petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541 – 9546. We affirm.
In December 2006, Johnson was convicted of criminal attempt,
aggravated assault and recklessly endangering another person and
subsequently sentenced to 17½ to 35 years of imprisonment. This Court
affirmed his judgment of sentence of February 2, 2009, and Johnson did not
seek further review. On June 17, 2010, Johnson filed his first PCRA petition.
Although counsel was appointed to represent Johnson, counsel filed a
Turner/Finley petition averring that there was no merit to the issues
Johnson sought to raise and seeking to withdraw. The PCRA court granted
counsel’s petition and ultimately dismissed Johnson’s PCRA petition. This
*Former Justice specially assigned to the Superior Court.
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Court affirmed the dismissal of Johnson’s first PCRA petition, and the
Pennsylvania Supreme Court denied Johnson’s petition for allowance of
appeal.
On July 8, 2013, Johnson filed his second PCRA petition, which is at
issue in this appeal.1 The trial court entered its notice of intent to dismiss
pursuant to Pa.R.Crim.P. 907 indicating that Johnson’s petition was untimely
and not subject to any exception to the PCRA’s timeliness requirements.
Johnson filed a response to the Rule 907 notice, but the PCRA court
dismissed his petition on December 4, 2013. This timely appeal followed.
On appeal, Johnson raises two claims of ineffective assistance of trial
counsel. Appellant’s Brief at V. Before we address them, however, we must
consider whether Johnson’s PCRA petition was timely because “[t]he PCRA’s
timeliness requirements are jurisdictional in nature, and a court may not
address the merits of the issues raised if the PCRA petition was not timely
filed.” Commonwealth v. Copenhefer, 941 A.2d 646, 648-49 (Pa. 2007).
The PCRA provides in relevant part as follows:
(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
1
Johnson filed this petition pro se and is acting pro se on appeal.
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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.
42 Pa.C.S.A. § 9545(b).
Johnson’s judgment of sentence became final on March 4, 2009, the
last day of the period in which he could have sought review of this Court’s
determination with the Supreme Court of Pennsylvania. See
Commonwealth v. Rojas, 874 A.2d 638, 643 (Pa. Super. 2005). As
Johnson did not file his second PCRA petition until July 8, 2013, it is patently
untimely and jurisdictionally time-barred unless Johnson proves one of the §
9545(b)(1) exceptions.
Johnson argues that the timeliness exceptions codified at §
9545(b)(1)(i) and (ii) apply. With regard to § 9545(b)(1)(i), Johnson
contends that the ineffectiveness of his trial counsel was evident at trial, and
the prosecutor, as a government official “interfered” when he did not move
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for a mistrial on Johnson’s behalf. Appellant’s Brief at 20. However, for the
exception set forth in § 9545(b)(i) to apply, the petitioner must prove that
“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.” 42 Pa.C.S.A. § 9545(b)(1)(i). Johnson does not allege that
government officials interfered with his ability to raise this claim previously;
rather, he contends only that the government interfered with his due
process rights by not acting on his behalf at trial. Accordingly, he has failed
to prove that this timeliness exception applies.
Next, Johnson argues that the “after-discovered evidence” exception
found in § 9545(b)(1)(ii) applies because on May 8, 2013, he became aware
that his appellate counsel was disbarred in March 2009, shortly after his
direct appeal was decided. He further contends that he filed his petition
within 60 days of discovering this fact, thereby satisfying § 9545(b)(2).2
Johnson is mistaken. Proof of appellate counsel’s disbarment was available
to the public on March 29, 2009; accordingly, the 60 days for purposes of
§ 9545(b)(2) began to run on that date. See Commonwealth v.
Feliciano, 69 A.3d 1270 (Pa. Super. 2013) (providing that where
2
In support of his claim, Johnson attached to his PCRA petition an order
from the Office of Disciplinary Counsel providing that Arthur L. Bloom,
Johnson’s counsel for direct appeal, was disbarred on March 23, 2009. See
PCRA Petition, 7/8/13, at Exhibit A-1.
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information regarding the suspension of counsel’s professional license was in
the public record for more than 60 days prior to filing of PCRA petition, the
petition is time-barred regardless of when petitioner allegedly became aware
of the information). Johnson did not file this PCRA petition until more than
four years after the fact of appellate counsel’s disbarment became public;
therefore, he has failed to fulfill the requirements of § 9545(b)(2) with
regard to this claim.
Having found that Johnson’s PCRA petition is untimely and therefore
jurisdictionally time-barred, we affirm the PCRA court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/12/2014
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