Opinion
J-A21026-15 No. 3335 EDA 2014
08-04-2015
COMMONWEALTH OF PENNSYLVANIA Appellee v. ANTHONY JOHNSON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order October 20, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0203601-2001
BEFORE: ALLEN, J., MUNDY, J., and FITZGERALD, J. MEMORANDUM BY MUNDY, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Anthony Johnson, appeals pro se from the October 20, 2014 order dismissing as untimely his petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. Upon careful review, we affirm.
We summarize the relevant procedural history of this case as follows. On April 17, 2001, a jury convicted Appellant of rape, involuntary deviate sexual intercourse, robbery, aggravated assault, and aggravated indecent assault. On December 14, 2001, the trial court sentenced Appellant to an aggregate term of incarceration of 25 to 50 years. Appellant filed a timely notice of appeal. However, this Court dismissed the appeal due to counsel's failure to file a brief. Superior Court Order, 221 EDA 2002, 8/7/02, at 1. Appellant filed a pro se PCRA petition on August 28, 2002, seeking the reinstatement of his direct appeal rights. Counsel was appointed and filed an amended petition on May 24, 2003. The PCRA court granted Appellant's petition on July 24, 2003. Appellant filed a renewed direct appeal nunc pro tunc on August 13, 2003. This Court affirmed the judgment of sentence on August 26, 2004, and our Supreme Court denied Appellant's petition for allowance of appeal on March 31, 2005. Commonwealth v. Johnson , 860 A.2d 1129 (Pa. Super. 2004) (unpublished memorandum), appeal denied, 871 A.2d 189 (Pa. 2005).
18 Pa.C.S.A. §§ 3121, 3123, 3701, 2702, and 3125, respectively.
On May 2, 2005, Appellant filed a timely pro se PCRA petition alleging various grounds of ineffective assistance of counsel. After an unaccountable delay and withdrawals of appointed counsel, the PCRA court appointed new counsel, who filed an "Amended PCRA Petition" on March 18, 2008, that supplanted Appellant's pro se PCRA petition with an application for DNA testing under 42 Pa.C.S.A § 9543.1. At hearings held June 12, 2008 and July 22, 2008, counsel conceded that, because the evidence at issue had been tested and the results submitted into evidence at trial, no relief was due under Section 9543.1. N.T., 6/12/08, at 5-6; N.T., 7/22/08, at 3. Counsel also sought to withdraw his appearance. N.T., 6/12/08, at 11-12; N.T., 7/22/08, at 3-5. The PCRA court dismissed Appellant's amended petition on July 22, 2008, and counsel was permitted to withdraw because the trial court concluded Appellant was not entitled to counsel for an appeal from the denial of a Section 9543.1 motion. N.T., 6/12/08, at 7-8, 12-13. Appellant did not file an appeal from the July 22, 2008 order.
Appellant filed a third PCRA petition, pro se, on January 12, 2009. The PCRA court issued a notice of its intent to dismiss pursuant to Pennsylvania Rule of Criminal Procedure 907 on September 18, 2009, and dismissed Appellant's petition without a hearing on October 21, 2009. Appellant did not file an appeal from the October 21, 2009 order. On September 16, 2010, Appellant filed a fourth PCRA petition. After some delay, Appellant petitioned the Pennsylvania Supreme Court to, inter alia, direct the PCRA court to address his PCRA petition. On April 11, 2012, the Supreme Court issued an order in mandamus, requiring the PCRA court to "adjudicate [Appellant's] pending [PCRA] petition within 90 days." Supreme Court Order, 173 EM 2011, 4/11/12. Thereafter, the PCRA court appointed counsel, who, on November 24, 2013, filed a motion to withdraw together with a Turner/Finley letter. The PCRA court issued a Rule 907 notice on March 17, 2014, and on May 13, 2014, the PCRA court dismissed the petition without a hearing and granted counsel's motion to withdraw. Appellant did not file a notice of appeal from the May 13, 2014 order.
See Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) (en banc).
Undaunted, on July 10, 2014, Appellant filed a fifth pro se PCRA petition, which is the subject of this appeal. The PCRA court issued a Rule 907 notice on September 16, 2014, and dismissed the petition without a hearing as untimely on October 22, 2014. Appellant filed a timely pro se notice of appeal on November 3, 2014.
The PCRA court did not order Appellant to file a concise statement of errors complained of on appeal under Pennsylvania Rule of Appellate Procedure 1925(b). The PCRA court filed a Rule 1925(a) opinion on February 24, 2015.
On appeal, Appellant raises the following questions for our review.
[1.] Has or has not, the Court of Common Pleas of Philadelphia County, failed to provide corrective judicial process by failing to address and adjudicate [Appellant's] ineffectiveness claim of trial counsel?Appellant's Brief at VI-VII.
[2.] Was or was not, [Appellant] deprived of his right to have the assistance of counsel for his defence [sic] and to have compulsory process for obtaining witnesses in his favor that is guaranteed by the Sixth Amendment of the United States Constitution and Article-(1) Section-(9) of the Pennsylvania Constitution?
[3.] Did or did not, the prosecutor deliberately suppress material DNA information, violate [Appellant's] right to due process of law of a fair trial under the 14th Amendment of the United States Constitution?
Appellant poses his second question three times and his third question twice to correspond to portions of the argument section of his brief providing his slightly varying analyses of these respective issues.
We are guided in this review by the following tenets.
"On appeal from the denial of PCRA relief, our standard and scope of review is limited to determining whether the PCRA court's findings are supported by the record and without legal error." Commonwealth v. Edmiston , 65 A.3d 339, 345 (Pa. 2013) (citation omitted)[, cert. denied, Edminston v . Pennsylvania , 1345 S. Ct. 639 (2013)]. "[Our] 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 PCRA court level." Commonwealth v. Koehler , 614 Pa. 159, 36 A.3d 121, 131 (2012) (citation omitted). "The PCRA court's credibility determinations, when supported by the record, are binding on this Court." Commonwealth v. Spotz , 610 Pa. 17, 18 A.3d 244, 259 (2011) (citation omitted). "However, this Court applies a de novo standard of review to the PCRA court's legal conclusions." Id.Commonwealth v. Medina , 92 A.3d 1210, 1214-1215 (Pa. Super. 2014) (en banc), appeal granted, 105 A.3d 658 (Pa. 2014). Additionally, in order to be eligible for PCRA relief, a petitioner must plead and prove by a preponderance of the evidence that his conviction or sentence arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2). These issues must be neither previously litigated nor waived. Id. at § 9543(a)(3).
In this case, the PCRA court determined that Appellant's petition was untimely and dismissed it for want of jurisdiction to review its merits. "[I]t is well-settled that ... a question of timeliness implicates the jurisdiction of our Court." Commonwealth v. Gandy , 38 A.3d 899, 902 (Pa. Super. 2012) (internal quotation marks and citation omitted), appeal denied, 49 A.3d 442 (Pa. 2012). "Because these timeliness requirements are mandatory and jurisdictional in nature, no court may properly disregard or alter them in order to reach the merits of the claims raised in a PCRA petition that is filed in an untimely manner." Commonwealth v. Lopez , 51 A.3d 195, 196 (Pa. 2012) (internal quotation marks and citation omitted). The PCRA "confers no authority upon this Court to fashion ad hoc equitable exceptions to the PCRA time-bar[.]" Commonwealth v. Watts , 23 A.3d 980, 983 (Pa. 2011) (citation omitted). This is to "accord finality to the collateral review process." Id. "It is well settled that [a]ny and all PCRA petitions must be filed [in a timely manner] unless one of three statutory exceptions applies." Commonwealth v. Garcia , 23 A.3d 1059, 1061-1062 (Pa. Super. 2011) (internal quotation marks, citation, appeal denied, 38 A.3d 823 (Pa. 2012). "We have repeatedly stated it is the appellant's burden to allege and prove that one of the timeliness exceptions applies. Whether Appellant has carried his burden is a threshold inquiry prior to considering the merits of any claim." Edmiston , supra at 346 (citation omitted).
The Act provides for the following possible exceptions to the timeliness requirement.
§ 9545. Jurisdiction and proceedings
...
(b) Time for filing petition.—
(1) Any petition under this subchapter, including a second or subsequent petition, shall be [timely] filed ... unless the petition alleges and the petitioner proves that:
(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.
42 Pa.C.S.A. § 9545(b).
(2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented.
...
In this case, Appellant's judgment of sentence became final on June 29, 2005, 90 days after our Supreme Court denied Appellant's petition for allowance of appeal on March 31, 2005, being the time allowed to file a writ of certiorari with the United States Supreme Court. See U.S. S. Ct. R. 13(1). Thus, Appellant's first and any subsequent PCRA petitions were required to be filed on or before June 29, 2006 to be considered timely. Appellant's petition under review was filed, as stated, on November 15, 2013, and is, therefore, plainly untimely.
Appellant does not allege or argue any of the exceptions to the timeliness requirements listed in the PCRA. Rather he claims his timely May 2, 2005 PCRA petition, as amended on March 18, 2008, was never finally adjudicated and that his current PCRA filing is not a new PCRA petition. Appellant's Brief at 1. Essentially, Appellant claims the March 18, 2008 amended PCRA petition contained both a request for DNA testing under Section 9543.1 of the PCRA and a claims for ineffective assistance of counsel under Section 9543. Id. at 2. Appellant asserts the PCRA court never disposed of the latter.
By the [PCRA] court's own admissions [it] only addressed the Commonwealth's answer to dispose of [Appellant's] request for DNA testing. The court did not address [Appellant's] ineffectiveness claim of trial counsel that is required by Pa.R.Crim.P. Rule 907(1)(3) in its review of [Appellant's] first amended PCRA petition of March 18, 2008.Id .
Appellant's argument is without merit. Initially, we note that when counsel amends a pro se PCRA petition, only the issues presented in the amended petition shall be considered by the PCRA court absent a timely raised challenge to PCRA counsel's effectiveness. Commonwealth v. Pursell , 724 A.2d 293, 301 (Pa. 1999) (holding, based upon principles discouraging hybrid representation, that only issues presented in a counseled amended PCRA petition shall be addressed by the PCRA court), cert. denied, Pursell v . Pennsylvania , 528 U.S. 975 (1999); see also Commonwealth v. Pitts , 981 A.2d 875, 880 (Pa. 2009) (emphasizing the requirement that challenges to PCRA counsel's effectiveness be raised in timely fashion before the PCRA court). Therefore, the PCRA court's July 22, 2008 order denying Appellant's "Amended PCRA Petition," albeit viewed solely as a motion for DNA testing, was a final appealable order and Appellant's current PCRA petition cannot be considered an extension of his previous timely pro se PCRA petition.
Even if the July 22, 2008 order was not a final order, and Appellant's January 12, 2009, pro se PCRA petition or his September 16, 2010 pro se PCRA petition, for which he was appointed counsel, were to be considered extensions of his timely PCRA petition, the PCRA court's October 21, 2009 or May 13, 2014 orders dismissing those petitions would constitute a final order disposing of his PCRA claims. Appellant did not appeal either order. Thus, under any interpretation of the procedural history of this case, the dismissal of Appellant's original timely PCRA petition was final no later than May 13, 2014. Thus, the July 10, 2014 PCRA petition now under review must be considered a new and facially untimely PCRA petition.
Inasmuch as Appellant has neither pled nor argued the application of any statutory exception to the timeliness requirement, we conclude the PCRA court was correct to dismiss his pro se PCRA petition as untimely. See Edmiston , supra . Lacking jurisdiction to address Appellant's substantive claims of ineffective assistance of counsel, we affirm the PCRA court's October 20, 2014 order.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/4/2015