Com. v. Johnson, C. ( 2015 )

J-A21038-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CALVIN JOHNSON,
Appellant No. 28 EDA 2015
Appeal from the PCRA Order entered November 20, 2014,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-1021331-1984
BEFORE: ALLEN, MUNDY, and FITZGERALD*, JJ.
MEMORANDUM BY ALLEN, J.: FILED JULY 22, 2015
Calvin Johnson (“Appellant”) appeals pro se from the order denying his
third petition for post-conviction relief filed pursuant to the Post Conviction
Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.
The pertinent facts and procedural history have been summarized as
follows:
On September 10, 1985, [Appellant] was found guilty
by a jury of the offenses of first degree murder and
possession of an instrument of crime. The sentence
imposed by the [trial] court, a term of life imprisonment
and a consecutive term of from two and one-half to five
years [of] imprisonment, was affirmed on direct appeal by
order dated June 12, 1987. The [Pennsylvania] Supreme
Court denied allowance of appeal on [January 28, 1988].
Commonwealth v. Johnson, 531 A.2d 32 (Pa. Super.
1987) (unpublished memorandum), appeal denied, 517
*Justice Fitzgerald, who is specially assigned to the Superior Court, did not
participate in this decision.
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Pa. 662, 538 A.2d 875 (1988). Appellant then filed a PCRA
petition, which was denied by the trial court. [This] Court
affirmed the denial of PCRA relief. Commonwealth v.
Johnson, 718 A.2d 858 (Pa. Super. 1998) (unpublished
memorandum), appeal denied, 558 Pa. 599, 735 A.2d
1268 (1999). Appellant filed a second PCRA petition on
December 10, 1999, which was dismissed without a
hearing by the PCRA court on timeliness grounds.
Commonwealth v. Johnson, No. 2402 EDA 2001 (Pa. Super. 2002)
unpublished memorandum at 1-2. On December 19, 2002, this Court
rejected Appellant’s claim that the PCRA court possessed jurisdiction over his
otherwise untimely petition based upon a claim of “government
interference.” Id. at 4 (citing 42 Pa.C.S.A § 9545(b)(1)(i)).
Appellant filed the PCRA petition at issue, his third, on May 23, 2012.
“After conducting an extensive and exhaustive review,” the PCRA court
concluded that Appellant’s third petition “was untimely filed and that none of
the timeliness exceptions applied.” PCRA Court Opinion, 2/23/15, at 2. This
appeal followed. The PCRA court did not require Pa.R.A.P. 1925 compliance.
Within his pro se brief, Appellant raises the following issues:
I. Whether [the PCRA] court possessed jurisdiction of
government interference claim – namely government fraud
on the court claim?
II. Whether [the PCRA court] erred in dismissing
[Appellant’s third PCRA] petition as untimely pursuant to
fraud on the court claim?
III. Whether the Exception Clause to the timeliness
requirement of [Section] 9545 PCRA Amendments (42
Pa.C.S.A. § 9545(b)(1)[)] is equivalent to the Martinez v.
Ryan’s [132 S. Ct. 1309 (2012)], procedural default
“Cause” law?
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Appellant’s Brief at 3.
This Court’s standard of review regarding an order dismissing 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. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). 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). Moreover, a PCRA court may decline to hold a
hearing on the petition if the PCRA court determines that the petitioner’s
claim is patently frivolous and is without a trace of support in either the
record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011
(Pa. Super. 2001).
Before addressing the claims raised by Appellant in his pro se brief, we
must first determine whether the PCRA court properly determined that
Appellant’s third PCRA petition was untimely.
The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation
omitted). Thus, if a PCRA petition is untimely, neither an appellate court nor
the PCRA court has jurisdiction over the petition. Id. “Without jurisdiction,
we simply do not have the legal authority to address the substantive claims”
raised in an untimely petition. Id.
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Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
becomes final unless the petition alleges, and the petitioner proves, an
exception to the time for filing the petition. Commonwealth v. Gamboa-
Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under
these exceptions, the petitioner must plead and prove that: “(1) there has
been interference by government officials in the presentation of the claim; or
(2) there exists after-discovered facts or evidence; or (3) a new
constitutional right has been recognized.” Commonwealth v. Fowler, 930
A.2d 586, 591 (Pa. Super. 2007) (citations omitted). A PCRA petition
invoking one of these statutory exceptions must “be filed within sixty days of
the date the claim first could have been presented.” Gamboa-Taylor, 753
A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to
the time restrictions of the PCRA must be pled in the petition, and may not
be raised for the first time on appeal. Commonwealth v. Burton, 936
A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not
raised before the lower court are waived and cannot be raised for the first
time on appeal.”).
This Court provided the following calculations regarding the finality of
Appellant’s sentence when considering the timeliness of Appellant’s second
PCRA petition:
[P]ursuant to Section 9545, [Appellant] was required to
file a PCRA petition within one year of the date his
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judgment of sentence became final. Instantly, Appellant’s
judgment of sentence became final 60 days after [January
22, 1988], when our Supreme Court denied allowance of
appeal and the time allowed for filing a petition for writ of
certiorari with the United States Supreme Court expired.
See: 42 Pa.C.S. § 9545(b)(3); Rule 20.1, Rules of the
United States Supreme Court (effective August 1, 1984).
Johnson, supra, unpublished memorandum at 3.
Therefore, in order to be timely, Appellant had to file his PCRA petition
no later than March 28, 1989. He did not file his third petition until over
twenty-three years later. Thus, it is patently untimely unless Appellant has
satisfied his burden of pleading and proving that one of the enumerated
exceptions applies. See Commonwealth v. Beasley, 741 A.2d 1258, 1261
(Pa. 1999).
Appellant has failed to prove the applicability of any of the exceptions
to the PCRA’s time restrictions. The PCRA court addressed Appellant’s
unsuccessful attempt to meet this burden:
[Appellant] claimed that his trial and PCRA counsel were
ineffective, and attempted to invoke the newly-recognized
constitutional right exception enumerated at 42 Pa.C.S. §
9545(b)(1)(iii). This exception requires that a petitioner
plead and prove the existence of a constitutional right
recognized after the expiration of the PCRA’s one-year
time bar [].
In support of his argument, [Appellant] relies on a
recent U.S. Supreme Court case, Martinez v. Ryan, 132
S. Ct. 1309 (2012). The Martinez case recognized that for
purposes of federal habeas corpus relief, “[i]nadequate
assistance of counsel at initial-review collateral
proceedings may establish cause for a prisoner’s
procedural default of a claim of ineffective assistance of
trial counsel.” Martinez, supra, at 1315, [Appellant’s]
reliance on Martinez is misplaced, however, because that
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case was applicable to federal habeas corpus claims, not
state post-conviction proceedings. As the Pennsylvania
Superior Court has explicitly stated: “While Martinez
represents a significant development in federal habeas
corpus law, it is of no moment with respect to the way
Pennsylvania courts apply the plain language of the time
bar set forth in section 9545(B)(1) of the PCRA.”
Commonwealth v. Saunders, 60 A.3d 162, 165 (Pa.
Super. 2013).
PCRA Court Opinion, 2/23/15, at 3-4.
Our review of the record amply supports the PCRA court’s conclusion
that it lacked jurisdiction to consider Appellant’s third PCRA petition. Within
his pro se brief, while Appellant asserts in his statement of questions
involved that the PCRA’s timeliness requirements are “equivalent” to the
“default ‘Cause’ law” of Martinez, he provides no supporting argument, and
this Court in Saunders found otherwise. Additionally, although Appellant
asserts that the PCRA court “erred when it failed to adjudicate” his claim of
governmental interference, as noted above, we previously affirmed the PCRA
court’s rejection of this claim when concluding that Appellant’s second PCRA
petition was untimely. See Johnson, supra, unpublished memorandum at
4-5.
In sum, because the PCRA court correctly concluded that it lacked
jurisdiction to consider Appellant’s third PCRA petition, we affirm the PCRA
court’s order denying Appellant post-conviction relief.1
____________________________________________
1
Given our disposition, Appellant’s motion to remand the matter for an
evidentiary hearing is denied.
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Order affirmed. Motion denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/22/2015
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