Com. v. Kirnon, J. ( 2014 )

J-S70023-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMIE KIRNON
Appellant No. 1028 EDA 2014
Appeal from the PCRA Order March 5, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0503741-2001
BEFORE: LAZARUS, J., MUNDY, J., and STRASSBURGER, J.*
MEMORANDUM BY MUNDY, J.: FILED DECEMBER 12, 2014
Appellant, Jamie Kirnon, appeals pro se from the March 5, 2014 order,
dismissing his petition for relief filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
On November 4, 2003, a jury found Appellant guilty of first-degree
murder, aggravated assault, criminal conspiracy, carrying firearms in public
in Philadelphia, and possession of an instrument of a crime.1 On November
5, 2003, the trial court imposed a sentence of life imprisonment without
parole for first-degree murder. On December 22, 2003, the trial court
imposed an aggregate sentence of 114 to 228 months’ imprisonment for the
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2502, 2702, 903, 6108, and 907, respectively.
J-S70023-14
remaining charges, to run consecutive to his life sentence. This Court
affirmed Appellant’s judgment of sentence on January 13, 2005.
Commonwealth v. Kirnon, 872 A.2d 1272 (Pa. Super. 2005) (unpublished
memorandum). Appellant did not file a petition for allowance of appeal with
our Supreme Court. As a result, his judgment of sentence became final on
February 14, 2005, when the filing period for such a petition expired. 2 See
generally 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 1113(a). Thereafter,
Appellant filed an unsuccessful PCRA petition in 2006. Appellant filed the
instant petition on June 2, 2011. On March 5, 2014, the PCRA court
dismissed Appellant’s PCRA petition. On April 2, 2014, Appellant filed a
timely notice of appeal.
As noted above, Appellant did not file the instant PCRA petition until
June 2, 2011. Therefore, it was patently untimely because it was not filed
within one year of his judgment of sentence becoming final. See 42
Pa.C.S.A. § 9545(b)(1). Furthermore, Appellant’s brief does not allege that
any of the three exceptions to the PCRA time-bar applies. See
Commonwealth v. Taylor, 933 A.2d 1035, 1039 (Pa. Super. 2007)
(stating, “[t]he PCRA specifically provides that a petitioner raising one of the
____________________________________________
2
We observe that the 30th day fell on Saturday, February 12, 2005. When
computing the 30-day filing period “[if] the last day of any such period shall
fall on Saturday or Sunday … such day shall be omitted from the
computation.” 1 Pa.C.S.A. § 1908. Therefore, the 30th day for Appellant to
file a timely allocatur petition was Monday, February 14, 2005.
-2-
J-S70023-14
statutory exceptions to the timeliness requirements must affirmatively plead
and prove the exception[]”) (citation omitted), appeal denied, 951 A.2d
1163 (Pa. 2008). We note Appellant’s brief cites to the United States
Supreme Court’s decision in Martinez v. Ryan, 132 S. Ct. 1309 (2012).3
Appellant’s Brief at 12, 16, 20, 28. To the extent this could be construed as
seeking a time-bar exception, this Court has held that Martinez does not
create such an exception. Commonwealth v. Saunders, 60 A.3d 162, 165
(Pa. Super. 2013), appeal denied, 72 A.3d 603 (Pa. 2013), cert. denied,
Saunders v. Pennsylvania, 134 S. Ct. 944 (2014).
Based on the foregoing, we conclude the PCRA court correctly
dismissed Appellant’s PCRA petition as untimely. Accordingly, the PCRA
court’s March 5, 2013 order is affirmed.
Order affirmed.
Judge Lazarus joins the memorandum.
Judge Strassburger files a concurring statement.
____________________________________________
3
In the PCRA court, Appellant couched Martinez as a time-bar exception
under 42 Pa.C.S.A. § 9545(b)(1)(iii), but does not do so on appeal.
Appellant’s Amended PCRA Petition, 5/19/12, at 7-8.
-3-
J-S70023-14
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2014
-4-