Com. v. Johnson, J.

J-S66034-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JUSTIN JUAN JOHNSON, :
:
Appellant : No. 803 WDA 2015
Appeal from the PCRA Order Entered May 8, 2015
in the Court of Common Pleas of Lawrence County
Criminal Division at No(s): CP-37-CR-0001512-2011
BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED DECEMBER 22, 2015
Justin Juan Johnson (Appellant) appeals from the order entered on
May 8, 2015, which granted in part and denied in part his petition filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.
We affirm in part and vacate in part.
Following convictions for attempted criminal homicide, aggravated
assault, and aggravated assault with a deadly weapon, Appellant was
sentenced to an aggregate term of 20 to 40 years of imprisonment. This
Court affirmed Appellant’s judgment of sentence on July 17, 2013.
Commonwealth v. Johnson, 82 A.3d 1069 (Pa. Super. 2013) (unpublished
memorandum). Although Appellant requested that his counsel file a petition
for allowance of appeal to our Supreme Court, counsel failed to do so.
* Retired Senior Judge assigned to the Superior Court.
J-S66034-15
Appellant pro se timely filed a PCRA petition seeking restoration of his
right to file post-sentence motions and a direct appeal nunc pro tunc. After
numerous substitutions of counsel and continuances, counsel filed an
amended petition on February 17, 2015. Therein, Appellant incorporated his
pro se petition by reference, and also sought a new trial based upon multiple
allegations of ineffective assistance of trial counsel.
Following a hearing, the PCRA court entered an order reinstating
Appellant’s direct appeal rights in the form of allowing him to file a petition
for allowance of appeal nunc pro tunc to the Supreme Court of Pennsylvania
and dismissing “[a]ll other requests for relief” stated in the original and
amended PCRA petitions. Order, 5/11/2015, at 2. Notably, the court did
not inform Appellant as to the deadline for filing his petition for allowance of
appeal nunc pro tunc. Additionally, in the opinion the PCRA court authored
in support of its order, the court, inter alia, rejected Appellant’s requests for
a new trial based upon his claims of ineffective assistance of counsel, relying
upon the reasons stated in its opinion authored for Appellant’s first appeal to
this Court. PCRA Court Opinion, 7/16/2015, at 5-6.
Appellant timely filed a notice of appeal and, following a court order, a
statement of errors complained of on appeal. In both filings, Appellant
claimed that the PCRA court erred in failing to reinstate his direct appeal
rights as to issues prior counsel failed to raise in his brief to this Court.
Concise Statement of Errors, 5/26/2015; Appellant’s Brief at 10.
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The Commonwealth did not appeal the PCRA court’s order,1 and
Appellant has not rejected the PCRA court’s allowing him to file a nunc pro
tunc petition in our Supreme Court. To the contrary, Appellant states that
he has appealed the portion of the order denying his remaining claims “prior
to filing his appeal to the Pennsylvania Supreme Court, unless this Honorable
Court directs him otherwise.” Statement of Jurisdiction, 8/11/2015. This
Court now directs him otherwise.
With his original direct appeal rights reinstated, Appellant’s judgment
of sentence is not final, and all additional PCRA claims are premature. See
Commonwealth v. Seay, 814 A.2d 1240, 1241 (Pa. Super. 2003)
(“Inasmuch as Appellant’s direct appeal is still pending…, it is patently clear
that this PCRA petition is premature.”); Commonwealth v. Kubis, 808
A.2d 196, 198 (Pa. Super. 2002) (“Appellant filed a premature PCRA petition
… while his direct appeal was still pending. The PCRA provides petitioners
with a means of collateral review, but has no applicability until the judgment
of sentence becomes final.”).
Indeed, when the PCRA court determined that Appellant was entitled
to file nunc pro tunc a petition for allowance of appeal to our Supreme Court,
it should have refrained from addressing the merits of Appellant’s remaining
claims, as Appellant is unable to appeal the disposition of those PCRA claims
at this time. Commonwealth v. Miller, 868 A.2d 578, 580 (Pa. Super.
1
The Commonwealth has not even filed a brief in this Court.
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2005) (“Because the PCRA court granted Appellant reinstatement of his
appellate rights nunc pro tunc, its consideration of Appellant's additional
issue did not result in a disposition Appellant could appeal.”). At this
juncture Appellant must exhaust his direct appeal rights prior to litigating
any other PCRA claims.
Therefore, we affirm that portion of the PCRA court’s order that
granted Appellant leave to file nunc pro tunc a petition for allowance of
appeal to our Supreme Court, and vacate that portion of the order that
disposed of Appellant’s remaining PCRA claims. Appellant has 30 days from
the date of this memorandum to file, nunc pro tunc, a petition for allowance
of appeal to our Supreme Court.2 Upon the conclusion of Appellant’s original
direct appeal, Appellant may exercise his rights under the PCRA to attack
collaterally that final judgment of sentence.
Order affirmed in part and vacated in part. Jurisdiction relinquished.
2
As we noted above, the order restoring Appellant’s right to file a direct
appeal did not indicate that Appellant had to file a petition of allowance of
appeal within 30 days of the court’s order to initiate a timely-filed direct
appeal nunc pro tunc. Had the PCRA court instructed Appellant to file the
nunc pro tunc petition within 30 days of the court’s order, our decision to
allow Appellant to pursue his petition for allowance of appeal, at least
arguably, would not be available to this Court. See Commonwealth v.
Wright, 846 A.2d 730, 734-35 (Pa. Super. 2004) (explaining that an
appellant must file a notice of appeal within 30 days of the order granting
the reinstatement of direct appeal rights nunc pro tunc but further observing
that the order granting those rights must inform the appellant that he or she
has to file the notice of appeal within 30 days).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2015
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