Com. v. Jones, S. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
STEPHEN JONES
Appellant No. 3188 EDA 2014
Appeal from the PCRA Order October 3, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0305501-2003
BEFORE: GANTMAN, P.J., PANELLA, J., and OLSON, J.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED JULY 21, 2015
Appellant, Stephen Jones, appeals pro se from the order entered in the
Philadelphia County Court of Common Pleas, which dismissed his second
petition filed under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A.
§§ 9541-9546. On March 7, 2005, a jury convicted Appellant of third-
degree murder, two counts of aggravated assault, and conspiracy. The
court sentenced Appellant on April 29, 2005, to an aggregate term of 35-70
years’ imprisonment. This Court affirmed Appellant’s judgment of sentence
on August 11, 2006, and our Supreme Court denied allowance of appeal on
January 4, 2007. See Commonwealth v. Jones, 909 A.2d 880 (Pa.Super.
2006), appeal denied, 591 Pa. 661, 916 A.2d 631 (2007). On June 15,
2007, Appellant timely filed his first PCRA petition, which the court denied on
July 14, 2008. This Court affirmed the order denying relief on December 18,
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2009, and our Supreme Court denied allowance of appeal on December 29,
2010. See Commonwealth v. Jones, 990 A.2d 47 (Pa.Super. 2009),
appeal denied, 608 Pa. 646, 12 A.3d 370 (2010). On August 5, 2013,
Appellant filed the current, second pro se PCRA petition. The court issued
Pa.R.Crim.P. 907 notice on August 18, 2014; Appellant responded on
September 3, 2014. The court dismissed Appellant’s petition as untimely on
October 3, 2014. On October 31, 2014, Appellant timely filed a pro se
notice of appeal. On November 10, 2014, the court ordered Appellant to file
a concise statement of errors complained of on appeal per Pa.R.A.P.
1925(b), and Appellant timely complied.
The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Turner, 73 A.3d 1283 (Pa.Super. 2013), appeal denied,
___ Pa. ___, 91 A.3d 162 (2014). A PCRA petition must be filed within one
year of the date the underlying judgment becomes final. 42 Pa.C.S.A. §
9545(b)(1). A judgment is deemed final at the conclusion of direct review or
at the expiration of time for seeking review. 42 Pa.C.S.A. § 9545(b)(3).
The three statutory exceptions to the PCRA’s timeliness provisions allow for
very limited circumstances under which the late filing of a petition will be
excused; and a petitioner asserting a timeliness exception must file a
petition within 60 days of the date the claim could have been presented.
See 42 Pa.C.S.A. § 9545(b)(1), (b)(2). Instantly, Appellant’s judgment of
sentence became final on April 4, 2007, upon expiration of the time to file a
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petition for writ of certiorari with the United States Supreme Court. See
U.S.Sup.Ct.R. 13 (allowing 90 days to file petition for writ of certiorari).
Appellant filed the current petition on August 5, 2013, which is patently
untimely. See 42 Pa.C.S.A. § 9545(b)(1). Additionally, Appellant did not
allege any exception to the PCRA’s time-bar in his PCRA petition.1 See id.
Thus, the court properly dismissed Appellant’s petition as untimely.2
Order affirmed.
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1
Appellant attaches to his appellate brief a motion to amend his PCRA
petition and an amended PCRA petition, which Appellant claims he filed one
day after the court denied his current PCRA petition, but before Appellant
had received notice of the denial. The motion and amended petition do not
appear on the docket entries or in the certified record. In this amended
petition, Appellant attempts to assert the “new constitutional right”
exception to the PCRA’s time-bar, claiming the court imposed an unlawful
mandatory minimum sentence based on the Supreme Court’s decision in
Alleyne v. United States, ___ U.S. ___, 133 S. Ct. 2151, 186 L. Ed. 2d 314
(2013). Even if we could consider this amended petition, Appellant’s claim
would afford no relief. See Commonwealth v. Newman, 99 A.3d 86
(Pa.Super. 2014) (en banc) (explaining Alleyne applies only to criminal
cases still pending on direct review); Commonwealth v. Miller, 102 A.3d
988 (Pa.Super. 2014) (holding Alleyne did not announce new constitutional
right that has been held to apply retroactively, to satisfy PCRA’s time-bar
exception).
2
Appellant also claims he was entitled to appointment of counsel in litigating
his current PCRA petition. Because the current petition is Appellant’s second
PCRA petition and the court determined an evidentiary hearing was
unnecessary, Appellant’s claim fails. See Pa.R.Crim.P. 904(C); 904(D).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/21/2015
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