Com. v. Jackson, J. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JEROD JACKSON :
:
Appellant : No. 188 WDA 2021
Appeal from the PCRA Order Entered January 26, 2021
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0001863-2012
BEFORE: DUBOW, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY KING, J.: FILED: October 5, 2021
Appellant, Jerod Jackson, appeals pro se from the order entered in the
Fayette County Court of Common Pleas, which dismissed his serial petition
filed under the Post Conviction Relief Act (“PCRA”).1 We affirm.
The relevant facts and procedural history of this case are as follows. On
March 11, 2013, a jury convicted Appellant of six counts each of robbery,
aggravated assault, simple assault, recklessly endangering another person,
and theft by unlawful taking, in connection with a bank robbery. The court
sentenced Appellant on April 8, 2013, to an aggregate 10 to 30 years’
incarceration. This Court affirmed Appellant’s judgment of sentence on
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* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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February 6, 2014, and our Supreme Court denied allowance of appeal on May
29, 2014. See Commonwealth v. Jackson, 97 A.3d 794 (Pa.Super. 2014)
(unpublished memorandum), appeal denied, 625 Pa. 663, 93 A.3d 462(2014).
In 2015, Appellant filed a pro se PCRA petition, arguing he received an
illegal mandatory sentence. The court appointed Attorney Diane Zerega as
counsel, who filed an amended PCRA petition on November 16, 2015,
reiterating Appellant’s illegal sentencing claim. On January 6, 2016, the PCRA
court granted relief, and on February 4, 2016, the court re-sentenced
Appellant to an aggregate 10 to 20 years’ incarceration. Appellant timely filed
a post-sentence motion, which the court denied on February 24, 2016.
Appellant did not file a direct appeal from his new judgment of sentence.
On November 27, 2017, Appellant filed a pro se PCRA petition. On
August 2, 2018, appointed counsel filed an amended PCRA petition. The PCRA
court conducted an evidentiary hearing on September 26, 2018. The next
day, the PCRA court denied relief. On June 7, 2019, this Court affirmed the
denial of PCRA relief based on untimeliness, and our Supreme Court denied
allowance of appeal on October 22, 2019. See Commonwealth v. Jackson,
219 A.3d 220 (Pa.Super. 2019) (unpublished memorandum), appeal denied,
____ Pa. ___, 218 A.3d 861 (2019).
Appellant filed the current pro se PCRA petition on November 20, 2019.
The PCRA court issued Pa.R.Crim.P. 907 notice of intent to dismiss the petition
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on December 4, 2020. On January 8, 2021, Appellant filed a pro se response.
The PCRA court denied relief on January 26, 2021. On February 5, 2021,
Appellant timely filed a pro se notice appeal. The court ordered Appellant to
file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal
on February 18, 2021, and Appellant timely complied.
Appellant raises the following issue for our review:
Did the Common [P]leas [C]ourt make a small error by
dismissing the [Appellant’s] argument concerning
[counsel’s] error(s) and the [PCRA court’s] decision to
[dismiss] his claim as untimely.
(Appellant’s Brief at 3).
Appellant argues that the court erred in denying relief without first
holding an evidentiary hearing on his current PCRA petition. Appellant admits
this petition is untimely, but he claims it meets a timeliness exception under
the PCRA statute. Specifically, Appellant avers that Attorney Zerega was
ineffective for failing to notify Appellant of the disposition of his post-sentence
motion. Appellant purports to satisfy the “after-discovered evidence”
exception, relying on a prison telephone log from 2016-2020 to substantiate
his claim. Appellant concludes the PCRA court erred by denying relief, and
this Court should grant him either a new trial or a new sentence. We disagree.
The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). 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 “final” at the conclusion of
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direct review or at the expiration of time for seeking review. 42 Pa.C.S.A. §
9545(b)(3). The statutory exceptions to the timeliness provisions in the PCRA
allow for limited circumstances under which the late filing of a petition will be
excused. See 42 Pa.C.S.A. § 9545(b)(1). A petitioner asserting a timeliness
exception must file a petition within one year of when the claim could have
been presented. 42 Pa.C.S.A. § 9545(b)(2). The newly-discovered facts
exception set forth in Section 9545(b)(1)(ii) requires a petitioner to
demonstrate he did not know the facts upon which he based his petition and
could not have learned those facts earlier by the exercise of due diligence.
Commonwealth v. Bennett, 593 Pa. 382, 395, 930 A.2d 1264, 1272
(2007); 42 Pa.C.S.A. § 9545(b)(1)(ii).
Instantly, Appellant’s new judgment of sentence became final on March
25, 2016, after the time to file a direct appeal expired. See 42 Pa.C.S.A. §
9545(b)(3) (“For purposes of [the PCRA], a judgment [of sentence] becomes
final at the conclusion of direct review ... or at the expiration of time for
seeking the review”). Appellant had until March 25, 2017, to file a timely
petition, so his current petition filed on November 20, 2019 is facially
untimely. See 42 Pa.C.S.A. § 9545(b)(1).
Appellant attempts to invoke the “newly-discovered facts” timeliness
exception per Section 9545(b)(1)(ii), claiming that Attorney Zerega was
ineffective for failing to notify him of the disposition of his post-sentence
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motion following resentencing.2 Appellant raised this same ineffectiveness
claim in his 2017 PCRA petition. According to Appellant, Attorney Zerega
testified at the 2018 PCRA hearing that she telephoned him about the denial
of his post-sentence motions. Appellant now submits as a his proposed “new
fact” prison call logs purporting to discredit Attorney Zerega’s testimony from
the PCRA hearing. Significantly, however, Appellant fails to explain why he
could not have discovered the existence of these phone records sooner by the
exercise of due diligence. See 42 Pa.C.S.A. § 9545(b)(1)(ii); Bennett,
supra. Therefore, Appellant’s current petition remains time-barred.
Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/5/2021
____________________________________________
2 Although Appellant characterizes his proposed timeliness exception as the
“after-discovered evidence” exception, Appellant is attempting to invoke the
“newly-discovered facts” exception to the PCRA time-bar. See
Commonwealth v. Burton, 638 Pa. 687, 704, 158 A.3d 618, 629 (2017)
(explaining distinction between “newly-discovered facts” exception to PCRA
time-bar and “after-discovered evidence” claim on merits of petition).
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