Com. v. Johnson, R.

J-S41027-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RODNEY JERMAINE JOHNSON :
:
Appellant : No. 1075 MDA 2022
Appeal from the Order Entered July 15, 2022
In the Court of Common Pleas of York County
Criminal Division at CP-67-CR-0006484-2008
BEFORE: LAZARUS, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: FILED: DECEMBER 19, 2022
Rodney Jermaine Johnson (Appellant) appeals pro se from the denial of
his “Motion to Dismiss Criminal Action/Criminal Information.” We affirm.
In May 2009, a jury found convicted Appellant of two counts of rape,
two counts of involuntary deviate sexual intercourse, aggravated assault,
aggravated indecent assault, and simple assault. On August 26, 2009, the
trial court sentenced Appellant to 28 - 56 years in prison. This Court affirmed
and the Pennsylvania Supreme Court denied allowance of appeal.
Commonwealth v. Johnson, 13 A.3d 991 (Pa. Super. 2010) (unpublished),
appeal denied, 17 A.3d 1252 (Pa. 2011).
Since 2012, Appellant has filed numerous unsuccessful requests for
post-conviction relief. See Commonwealth Brief at 5-11 (reciting procedural
history from 2009 through August 2022). This Court recently affirmed the
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* Former Justice specially assigned to the Superior Court.
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denial of Appellant’s ninth petition filed pursuant to the Post Conviction Relief
Act (PCRA).1 Commonwealth v. Johnson, 270 A.3d 1148 (Pa. Super. 2021)
(finding Appellant’s ninth PCRA petition untimely). Appellant filed a tenth
PCRA petition which the PCRA court denied on May 9, 2022. Appellant did not
appeal.
On July 8, 2022, Appellant filed the underlying “Motion to Dismiss
Criminal Action/Criminal Information,” alleging he was improperly convicted
because of defects relating to the complaint, affidavit, arrest warrant, and
jurisdiction. The lower court denied relief on July 15, 2022. Order, 7/15/22
(observing Appellant has pro se “filed a series of Post-Conviction Relief
Petitions, culminating in his tenth petition which this [c]ourt dismissed on May
9, 2022.”). Appellant timely appealed.
On August 25, 2022, this Court issued a rule to show cause for Appellant
to explain why his 2022 motion challenging his 2009 sentence was timely.
See Pa.R.Crim.P. 720(A)(1) (“A written post-sentence motion shall be filed no
later than 10 days after imposition of sentence.”). Appellant filed a one-page
response claiming the Commonwealth’s “malicious prosecution” and “bias”
entitled him to relief, but did not address timeliness. Application for Relief,
9/9/22. This Court discharged the rule to show cause. Order, 10/14/22.
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1 See 42 Pa.C.S.A. §§ 9541-9546, et seq.
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Appellant presents six issues related to his allegations of deficiencies in
the complaint, warrant, affidavit, and jurisdiction. Appellant’s Brief at 9-10
(unnumbered). He also invokes the PCRA, arguing:
Counsel was ineffective of assistance of counsel failure [sic] to
protect and defend [Appellant] as per sworn to in the 6 th
Amendment Constitution of the United States. The unsworn
Affidavit too which excluded a Magistrate signature, Seal, Time &
Date-should be void and [Appellant] vacated. Counsel excluded
this from the [c]ourt[’]s attention causing Due Process of
[Appellant] with bias intentions to fully argue and defend the
honor of the 6th AMENDMENT. This is exculpatory evidence to
[Appellant] that now [Appellant] is establishing to the Higher
an[d] Lower Courts. Counsel never brought this issue up in trial
or on P.C.R.A. or any other proceeding to get the courts[’]
attention. The Petition clearly speaks for itself with the
compone[n]t (the Affidavit) - that still exist[s]. Motion to Dismiss
Criminal Action/Criminal Information No. 6484-2008.
Id. at 7 (unnumbered).
The lower court denied relief based on Appellant’s July 8, 2022 motion
being an untimely omnibus motion. The court stated that Appellant “filed a
waiver of arraignment on November 14, 2008[, and] offered no reason as to
why his omnibus motion was not filed within thirty days thereof.” Statement
of Lower Court Pursuant to Pa.R.A.P. 1925(a), 8/24/22, at 2. The court also
stated: “Should the Superior Court deem [Appellant’s] Motion to Dismiss to
be an 11th PCRA petition, this [c]ourt denies that petition as untimely for the
same reasons[.]” Id. at 3.
The Commonwealth considers Appellant’s motion to be an untimely
PCRA petition. Commonwealth Brief at 15 (observing Appellant’s judgment of
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sentence became final on May 30, 2011, and Appellant “had until May 30,
2012, to timely file a petition under the PCRA, which he failed to do.
Additionally, [he] fails to satisfy one of the three statutory exceptions outlined
in 42 Pa. Cons. Stat. § 9545(b)(1).”).
We agree with the characterization of Appellant’s motion as a PCRA
petition. See 42 Pa.C.S.A. § 9542 (“The action established in this subchapter
shall be the sole means of obtaining collateral relief and encompasses all other
common law and statutory remedies for the same purpose that exist when
this subchapter takes effect ….”). “If a PCRA petition is untimely, courts lack
jurisdiction over the petition.” Commonwealth v. Woolstrum, 271 A.3d
512, 513 (Pa. 2022). A PCRA petition must be filed within one year of the
date that the judgment of sentence became final. 42 Pa.C.S.A. § 9545(b)(1).
“This one-year limitation is jurisdictional, and therefore courts are prohibited
from considering an untimely PCRA petition.” Commonwealth v. Lopez,
249 A.3d 993, 999 (Pa. 2021) (citations omitted). An exception occurs if a
petitioner pleads and proves governmental interference, newly-discovered
evidence, or a newly recognized constitutional right. Id. citing 42 Pa.C.S.A.
§ 9545(b)(1)(i)–(iii).
Appellant’s judgment of sentence became final in 2011, and he did not
plead and prove an exception to the PCRA time limitation. No relief is due.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2022
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