Com. v. Jones, J. ( 2017 )

J-S36019-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMAR JONES,
Appellant No. 3598 EDA 2016
Appeal from the PCRA Order of October 31, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014691-2007
BEFORE: PANELLA, J., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED JUNE 12, 2017
Appellant, Jamar Jones, appeals pro se from the order entered on
October 31, 2016, dismissing as untimely his petition filed pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court summarized the facts and procedural history of this
case as follows:
[…Appellant] entered a negotiated guilty plea to the charges
of third-degree murder, criminal conspiracy, robbery and
possession of an instrument of crime, generally on
December 19, 2012. On December 27, 2012 [the trial
court] imposed an aggregate sentence of thirty to sixty
years’ incarceration upon him. [Appellant] did not file either
a post-sentence motion or a notice of appeal.
On March 6, 2014, [Appellant] filed a pro se petition
pursuant to the PCRA wherein he claimed that trial counsel
was ineffective for failing to file post-sentence motions and
a requested direct appeal. Following [Appellant’s] filing of
his pro se PCRA petition, Todd Mosser, Esquire was
appointed to represent him. On September 26, 2016, Mr.
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Mosser filed a “[n]o [m]erit” letter pursuant to
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) [(en banc)]; Commonwealth v. Turner, 544 A.2d
927 (Pa. 1988), and a [m]otion to [w]ithdraw as [c]ounsel.
Upon reviewing the letter and the entire record, [the PCRA
court] sent [Appellant] a Pa.R.Crim.P. 907 [n]otice of
[i]ntent to [d]ismiss. [Appellant] did not file a response and
on October 31, 2016, [the PCRA court] issued an order
dismissing [Appellant’s] PCRA petition without a hearing and
granting counsel’s motion to withdraw. Subsequent
thereto, [Appellant] filed a timely notice of appeal.
PCRA Court Opinion, 11/17/2016, at 1-2.
On appeal, Appellant presents the following issues, pro se, for our
review:
1. Whether the PCRA court erred when the court denied
Appellant an appeal, nunc pro tunc, whereas PCRA
counsel provided deficient performance for failing to
investigate [Appellant’s] claim that trial counsel failed to
honor [Appellant’s] request to file a requested appeal via
numerous letters []?
2. Whether the PCRA court erred when the court
determined that an evidentiary hearing will not be
granted to determine if trial counsel abandoned
[Appellant’s] right to [a] direct appeal after [Appellant]
plead [sic] guilty; whereas counsel’s failure to file an
appeal constituted ineffective assistance of counsel?
Appellant’s Brief at 3 (complete capitalization omitted).
Appellant contends that he “sent numerous letters to defense counsel
requesting that counsel file an appeal on his behalf[;] instead, counsel
abandoned [him] during the appellate phase of the proce[e]ding.” Id. at
5. He avers that he had “a right to appeal his sentence, even though he
plead [sic] guilty, and the failure to file an appeal constituted ineffective
assistance of counsel.” Id. at 6. Appellant further claims the PCRA court
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erred by failing to hold “an evidentiary hearing to determine if in fact
defense counsel had a reasonable basis for failing to file a direct appeal on
behalf of” Appellant. Id. at 5.
Our standard of review is well-settled:
[A]n appellate court reviews the PCRA court's findings of
fact to determine whether they are supported by the record,
and reviews its conclusions of law to determine whether
they are free from legal error. The scope of review is
limited to the findings of the PCRA court and the evidence of
record, viewed in the light most favorable to the prevailing
party at the trial level.
Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa. Super. 2014)
(citation omitted).
Further, we review the PCRA court's dismissal of a PCRA petition
without a hearing for an abuse of discretion:
[T]he right to an evidentiary hearing on a post-conviction
petition is not absolute. It is within the PCRA court's
discretion to decline to hold a hearing if the petitioner's
claim is patently frivolous and has no support either in the
record or other evidence. It is the responsibility of the
reviewing court on appeal to examine each issue raised in
the PCRA petition in light of the record certified before it in
order to determine if the PCRA court erred in its
determination that there were no genuine issues of material
fact in controversy and in denying relief without conducting
an evidentiary hearing.
* * *
Before we may address the merits of Appellant's arguments,
we must first consider the timeliness of Appellant's PCRA
petition because it implicates the jurisdiction of this Court
and the PCRA court.
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Pennsylvania law makes clear that when a PCRA petition is
untimely, neither this Court nor the trial court has
jurisdiction over the petition. The period for filing a PCRA
petition is not subject to the doctrine of equitable tolling;
instead, the time for filing a PCRA petition can be extended
only if the PCRA permits it to be extended[.] This is to
accord finality to the collateral review process. However, an
untimely petition may be received when the petition alleges,
and the petitioner proves, that any of the three limited
exceptions to the time for filing the petition, set forth at 42
Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are met.
Commonwealth v. Miller, 102 A.3d 988, 992–993 (Pa. Super. 2014)
(citations and quotation marks omitted). “Any petition under [the PCRA]
shall be filed within one year of the date the judgment becomes final[.]” 42
Pa.C.S.A. § 9545(b)(1).
In this case, the trial court imposed Appellant’s judgment of sentence
on December 27, 2012. Because no direct appeal was filed, his judgment of
sentence became final “when the time for seeking direct review expire[d].”
42 Pa.C.S.A. § 9545(b)(3). A litigant has 30 days to file a notice of appeal
from a final order, unless the appeal period falls on a weekend or legal
holiday. See Pa.R.A.P. 903(a); 1 Pa.C.S.A. § 1908. Thus, Appellant’s
judgment of sentence became final on Monday, January 28, 2013. Because
Appellant filed his pro se PCRA petition on March 6, 2014, it is patently
untimely.
Appellant does not plead or prove any of the three exceptions to the
PCRA’s jurisdictional timing requirement. Moreover, our Supreme Court has
consistently stated, “that couching post-conviction issues in terms of
ineffectiveness cannot ‘save’ an untimely filed PCRA petition that does not
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fall into any of the exceptions to the PCRA's jurisdictional time bar.”
Commonwealth v. Robinson, 139 A.3d 178, 182 (Pa. 2016) (citation
omitted). Accordingly, we are without jurisdiction to address Appellant’s
ineffective assistance of counsel claims and an evidentiary hearing was
unwarranted.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/12/2017
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