Com. v. Johnson, G. ( 2021 )

J-S23022-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GREGORY JOHNSON :
:
Appellant : No. 467 EDA 2021
Appeal from the PCRA Order Entered February 3, 2021, in the Court of
Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0611401-2003.
BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED SEPTEMBER 14, 2021
Gregory Johnson appeals pro se from the order denying as untimely his
serial petition for 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 are as follows: On October
9, 2003, after a bench trial, Johnson was convicted of possession with intent
to deliver a controlled substance. That same day, the trial court sentenced
him to 19 to 38 months of incarceration, to be followed by a one-year
probationary term. Johnson did not file a direct appeal. He served 38 months
in state prison and was released.
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* Retired Senior Judge assigned to the Superior Court.
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On April 24, 2007, while on probation, Johnson participated in an armed
home invasion. On May 9, 2008, a jury convicted him of several crimes, and,
on August 28, 2008, the trial court imposed an aggregate sentence of 8½ to
17 years of imprisonment.
On October 23, 2008, the trial court held a probation revocation hearing
regarding Johnson’s 2003 drug conviction. After the defense stipulated to the
violation, the trial court imposed a new sentence of 97 to 194 months of
imprisonment. On November 3, 2008, Johnson filed a motion for
reconsideration of his sentence, which the trial court denied by order entered
November 12, 2008. Johnson did not file a direct appeal.
On August 31, 2009, Johnson filed a timely pro se PCRA petition, in
which he challenged the legality of his revocation sentence. The PCRA court
appointed counsel. On September 24, 2010, PCRA counsel filed a “no-merit”
letter and petition to withdraw pursuant to Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.
Super. 1988) (en banc). The PCRA court issued Pa.R.Crim.P. 907 notice of its
intent to dismiss Johnson’s petition without a hearing. Johnson did not file a
response. By order entered December 20, 2010, the PCRA court denied
Johnson’s first PCRA petition. Johnson did not file a direct appeal.
On January 12, 2016, Johnson filed a second pro se PCRA petition. On
March 31, 2016, the PCRA court issued Rule 907 notice of its intent to dismiss
Johnson’s second petition as untimely filed. Johnson filed a response. On
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June 24, 2016, the PCRA court denied Johnson’s second petition. He did not
file a direct appeal.
On October 16, 2018, Johnson filed the pro se PCRA petition at issue,
his third. On November 17, 2018, the PCRA issued Rule 907 notice of its
intent to dismiss the serial PCRA petition without a hearing. Johnson filed a
response. By order entered February 3, 2021, the PCRA court denied
Johnson’s third PCRA petition as untimely filed. This timely appeal followed.
The PCRA court did not require Pa.R.A.P. 1925 compliance.
Johnson raises three issues on appeal, which we quote verbatim:
1. Whether the P.C.R.A. court erred in finding that V.O.P.
hearing counsel was not Ineffective for failing to file a
direct appeal or even a motion for reconsideration when
counsel was requested to do so on the court record by
appellant. And for not objecting on the grounds that the
court could only resentence appellant upon revocation of
Probation to the remaining maximum for a ungraded
felony 18 Pa.C.S. §106.
2. Whether the P.C.R.A court erred in finding that the
Common Pleas Court of Philadelphia County Pa. Imposed
a judgement of sentence of 97 months to 194 months for
a violation of 1 year term of probation after a conviction
in an unrelated matter was not illegal and excessive
under 42 Pa.C.S. §9543(a)(2)(i)(ii)(vii)
3. Whether the P.C.R.A. court erred in finding that Judge
Christopher R. Wogan did not interfere with appellant
Direct appeal rights when he did not respond to P.C.R.A.
counsel repetitious request for V.O.P. Hearing Notes of
testimony and not sign a court order for counsel to
recover V.O.P. Hearing Notes of testimony that caused
denial of counsel.
Johnson’s Brief at 3.
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Before considering these issues, we must first determine whether the
PCRA court correctly determined that his third PCRA petition was untimely.
The timeliness of a post-conviction petition is jurisdictional. Commonwealth
v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). 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, that an exception to the time for filing the
petition is met.
The three narrow statutory exceptions to the one-year time bar are as
follows: “(1) interference by government officials in the presentation of the
claim; (2) newly discovered facts; and (3) an after-recognized constitutional
right.” Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa. Super. 2012)
(citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii)). A PCRA petition invoking one of these
statutory exceptions must be filed within one year of the date the claim could
have been presented.” 42 Pa.C.S.A. § 9545(b)(2). In addition, exceptions to
the PCRA’s time bar 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) (providing that issues not raised
before the lower court are waived and cannot be raised for the first time on
appeal).
Finally, if a PCRA petition is untimely and the petitioner has not pled and
proven an exception “neither this Court nor the [PCRA] court has jurisdiction
over the petition. Without jurisdiction, we simply do not have the legal
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authority to address the substantive claims.” Commonwealth v.
Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007) (citation omitted).
Here, Johnson’s judgment of sentence became final on December 12,
2008, upon expiration of the thirty-day period for filing an appeal to this Court.
See 42 Pa.C.S.A. § 9545(b)(3). Therefore, Johnson had until December 14,
2009, to file a timely PCRA petition1. Because Johnson filed the PCRA petition
at issue in 2018, it is untimely unless he has satisfied his burden of pleading
and proving that one of the enumerated exceptions applies. See Hernandez,
supra.Johnson has failed to plead and/or prove any exception to the PCRA’s
time bar. The only exception he referred to in his pro se PCRA petition was
“governmental interference” in the form of the Judge Wogan’s failure to grant
PCRA counsel’s alleged requests for a copy of the notes of testimony from his
violation of probation/sentencing hearing. The “governmental interference”
exception requires the petitioner to prove that the “failure to raise the claim
previously was the result of interference by government officials[.]” 42
Pa.C.S.A. § 9545(b)(1)(i).
Johnson provides no argument or citation to authority to support his
claim, and our review of the record refutes his assertion that PCRA counsel
made repeated requests to Judge Wogan for the transcript. The docket entries
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1 Because December 12, 2019, fell on a Saturday, the deadline for filing the
PCRA petition was extended to the following Monday. See 1 Pa.C.S.A. § 1908.
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reflect that consideration of Johnson’s first PCRA petition was continued
several times because PCRA counsel had yet to receive the pertinent
transcript. It is clear, however, that PCRA counsel had received and reviewed
the transcript of the violation of probation sentencing hearing before she filed
her Turner/Finley letter and request to withdraw. Thus, Johnson has not
established this time-bar exception.2
In sum, our review of the record supports the PCRA court’s conclusion
that it lacked jurisdiction to consider Johnson’s serial PCRA petition because it
was untimely, and Johnson had not established a time-bar exception.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/14/2021
____________________________________________
2 In addition to concluding that Johnson failed to meet this exception, the
PCRA court also concluded that Johnson’s claim that prior counsel’s failure to
file a direct appeal was a “newly-discovered fact” that he first learned in 2018
was refuted because he conceded a direct appeal was not filed in his 2016
PCRA petition. See PCRA Court Opinion, 2/3/21, at 1. Our review of the
record supports this conclusion.
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