Opinion
757 WDA 2023 J-A18028-24
08-22-2024
COMMONWEALTH OF PENNSYLVANIA v. MICHAEL ROLAND JOHNSON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered April 21, 2023 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0001370-2018
BEFORE: OLSON, J., MURRAY, J., and BENDER, P.J.E.
MEMORANDUM
MURRAY, J.
Michael Roland Johnson (Appellant) appeals from the order dismissing as untimely his third petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
A prior panel of this Court summarized the factual and procedural background as follows:
On July 10, 2017, [Appellant] was charged with recklessly endangering another person, firearms not to be carried without a license, and possessing instruments of crime, [see 18 Pa.C.S.A. §§ 2705, 6106(a)(1), 907(b),] related to the discharge of a gun inside of a bar in Erie, Pennsylvania. … On February 4, 2019, following a jury trial, [Appellant] was convicted of the above-described charges. The trial court sentenced [Appellant] to an aggregate term of 42 to 84 months in prison and 3 years of probation.Commonwealth v. Johnson, 237 A.3d 428 (Pa. Super. 2020) (unpublished memorandum at 1-2) (footnote omitted). Appellant's trial counsel (trial counsel) filed a timely post-sentence motion. Thereafter, Appellant retained new counsel (post-sentence counsel), who filed an additional post-sentence motion. The trial court granted trial counsel's motion to withdraw. On February 26, 2019, the trial court denied Appellant's post-sentence motions. No direct appeal followed.
On April 3, 2019, [Appellant] filed [his first] pro se, PCRA Petition. The PCRA court appointed [Appellant] counsel, … who filed an Amended PCRA Petition. On August 12, 2019, the [PCRA] court denied [Appellant's PCRA] Petition without a hearing. [Appellant] filed a timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal.Id. at 2 (footnote omitted). Appellant argued "his trial counsel was ineffective in failing to investigate and provide evidence in support of his pre-trial suppression Motion." Id. at 3. On May 1, 2020, we affirmed the PCRA court's order. Id. at 4. Appellant did not seek allowance of appeal in the Pennsylvania Supreme Court.
On May 26, 2020, Appellant filed his second PCRA petition…. In the petition, Appellant asserted that prior PCRA counsel … was ineffective. On June 29, 2020, the PCRA court … appointed [new] counsel … to represent Appellant. On August 3, 2020, the PCRA court held a hearing on Appellant's second PCRA petition, at which only Appellant and trial counsel testified. The PCRA court denied the [second] petition in an order filed on August 5, 2020.Commonwealth v. Johnson, 253 A.3d 276 (Pa. Super. 2021) (unpublished memorandum at 3) (record citation omitted).
Appellant timely appealed. His counsel filed a Turner/Finley brief and petition to withdraw. Id. at 4-5. In the Turner/Finley brief, counsel identified three issues regarding first PCRA counsel's ineffectiveness, and one issue regarding the "ineffectiveness of [Appellant's] post-sentence counsel for not filing a direct appeal." Id. at 6, 13. On April 13, 2021, we affirmed the PCRA court's order and granted counsel's petition to withdraw. Id. at 14. In rejecting the claim regarding post-sentence counsel as "frivolous," we noted that "Appellant testified [at the PCRA hearing] that he hired [post-sentence counsel] for the sole purpose of filing post-sentence motions. Appellant also testified that [post-sentence counsel] did everything Appellant asked him to do." Id. at 14 (record citations omitted). On October 18, 2021, the Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Johnson, 265 A.3d 195 (Pa. 2021).
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
On February 24, 2023, Appellant, pro se, filed the instant PCRA petition, his third. Appellant asserted that his trial counsel and post-sentence counsel rendered ineffective assistance by failing to file a direct appeal. PCRA Petition, 2/24/23, ¶¶ 4-7. He further asserted his two previous PCRA attorneys rendered ineffective assistance by failing to "adequately present" the direct appeal issue. Id. ¶ 10.
On February 28, 2023, the PCRA court issued Pa.R.Crim.P. 907 notice of its intent to dismiss the petition without a hearing. The PCRA court explained the petition was facially untimely and failed to set forth any exception to the PCRA's time-bar. Rule 907 Notice, 2/28/23, ¶ 2 (citing 42 Pa.C.S.A. § 9545(b)(1) (stating a PCRA petition must "be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves" that an enumerated exception applies)). The PCRA court further observed the issue Appellant raised had been previously litigated and rejected in connection with his second PCRA petition. Id. (citing Johnson, 253 A.3d 276 (unpublished memorandum at 14)).
On March 23, 2023, Appellant filed a petition for extension of time, asserting he "recently discovered new relevant information that he believes would successfully reinstate his" direct appeal rights. Petition for Extension of Time, 3/23/23, ¶ 4; see also 42 Pa.C.S.A. § 9545(b)(1)(ii) (providing an exception to the PCRA's time-bar where "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[.]"). On March 27, 2023, the PCRA court granted Appellant leave to file, within 20 days, "an amended PCRA petition identifying with specificity the 'recently discovered new relevant information' referenced" in his petition for extension of time. Order, 3/27/23.
On April 19, 2023, having received no amended petition from Appellant, the PCRA court entered an order dismissing the petition. On the same date, the clerk of courts received and docketed Appellant's amended petition. The amended petition attached an April 3, 2023, letter, written by post-sentence counsel, in which post-sentence counsel stated he "was retained [by Appellant] only to do a Motion to Reconsider/Modify Sentence…." Amended PCRA Petition, 4/19/23, Exhibit 1.
On April 21, 2023, the PCRA court entered an order dismissing the amended petition as untimely filed, citing the 20-day deadline set forth in its March 27, 2023, order. Order, 4/21/23. The PCRA court further noted that,
even if the court were to consider the amended PCRA [petition as timely filed, it] would be denied for [Appellant's] failure to comply with the March 27, 2023[,] order requiring [Appellant] to describe with specificity the "recently discovered new relevant information" referenced in his petition for extension of time filed March 23, 2023. The amended PCRA [petition] is merely a rehash of [Appellant's] previously litigated argument pertaining to ineffective assistance of counsel. See [Johnson, 253 A.3d 276 (unpublished memorandum at 6)]. Accordingly, the averments of the amended petition do not meet any of the exceptions set forth in 42 Pa.C.S.A. § 9545(b).Id. (some capitalization modified).
Appellant filed a notice of appeal. Appellant and the PCRA court have complied with Pa.R.A.P. 1925. Appellant raises two issues for our review:
Docketed on May 23, 2023, Appellant's notice of appeal is facially untimely, as it was filed more than 30 days after the April 21, 2023, order dismissing his petition. See Pa.R.A.P. 903(a) ("Except as otherwise prescribed by this rule, the notice of appeal … shall be filed within 30 days after the entry of the order from which the appeal is taken."). However, because Appellant is incarcerated, his appeal implicates Pa.R.A.P. 121(f), which provides:
A pro se filing submitted by a person incarcerated in a correctional facility is deemed filed as of the date of the prison postmark or the date the filing was delivered to the prison authorities for the purposes of mailing as documented by a properly executed prisoner cash slip or other reasonably verifiable evidence.Pa.R.A.P. 121(f). Though Appellant failed to properly invoke Rule 121(f) here, we decline to quash his appeal. As the notice of appeal was docketed only one day late, Appellant likely mailed it or delivered it to prison authorities within the 30-day appeal period. See Commonwealth v. Patterson, 931 A.2d 710, 714 (Pa. Super. 2007) (declining to quash appeal as untimely where incarcerated appellant filed pro se notice of appeal three days after deadline, even though the record lacked a postmarked envelope definitively noting the day of mailing).
1. Did [the] lower court err[] by den[y]ing the Appellant[']s amended PCRA filing[,] ignoring the [prisoner] mailbox rule[?]
2. Did [the] lower court err[] by den[y]ing Appellant[']s right to a direct appeal by way of trial counsel withdrawing himself from the proceedings by way of Appellant hiring an additional counsel[?]Appellant's Brief at 5 (numbering added; capitalization modified).
We review the dismissal of a PCRA petition to determine "whether the PCRA court's findings of fact are supported by the record, and whether its conclusions of law are free from legal error." Commonwealth v. Busanet, 54 A.3d 35, 45 (Pa. 2012). "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 party who prevailed in the PCRA court proceeding." Id.
Before reaching the merits of a PCRA petition's claims, we must consider the timeliness of the petition. See Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014). A PCRA petition "shall be filed within one year of the date the judgment becomes final[.]" 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence becomes final "at the conclusion of direct review … or at the expiration of time for seeking the review." Id. § 9545(b)(3). "The timeliness of a PCRA petition is jurisdictional. If a PCRA petition is untimely, a court lacks jurisdiction." Commonwealth v. Reeves, 296 A.3d 1228, 1230-31 (Pa. Super. 2023).
Here, as a prior panel of this Court noted, Appellant's "judgment of sentence became final on March 28, 2019, thirty days after the denial of [Appellant's] post-sentence motions," when the time for filing a direct appeal expired. Johnson, 253 A.3d 276 (unpublished memorandum at 8). Appellant did not file the instant petition until February 24, 2023. "However, a petitioner may overcome the PCRA's time-bar if he pleads and proves one of the statutory exceptions set forth in 42 Pa.C.S.A. § 9545(b)." Id. at 1231. The exceptions are:
(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)(1)(i)-(iii).
Here, Appellant purports to invoke the newly-discovered facts exception under Section 9545(b)(1)(ii). See Petition for Extension of Time, 3/23/23, ¶ 4; Appellant's Brief at 6. This exception "requires petitioner to allege and prove that there were facts that were unknown to him and that he could not have ascertained those facts by the exercise of due diligence." Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008) (internal citations, quotations, and emphasis omitted). "[T]he focus of this exception 'is on the newly discovered facts, not on a newly discovered or newly willing source for previously known facts.'" Commonwealth v. Lopez, 249 A.3d 993, 999 (Pa. 2021) (emphasis in original) (quoting Marshall, 947 A.2d at 720).
In its opinion, the PCRA court analyzed Appellant's invocation of the newly-discovered facts exception:
[Appellant] asserts that he was recently provided a letter from his post-sentence counsel, … confirming that [post-sentence counsel] was hired only to challenge [Appellant's] sentence, not to file a direct appeal.
However, [post-sentence counsel's] letter does not provide any new or unknown information. In fact, the letter only confirms what was already accepted as fact by the Superior Court [in connection with Appellant's second PCRA petition]: "[Trial counsel] was not counsel of record during the appeal period because Appellant had hired new counsel, [post-sentence counsel]. Appellant testified that he hired [post-sentence counsel] for the sole purpose of filing post-sentence motions." [Johnson, 253 A.3d 276 (unpublished memorandum at 14)].
Nevertheless, Appellant's [amended PCRA petition] relies on the "new" [] letter to argue ineffective assistance of [trial counsel,] when [trial counsel] withdrew as counsel during the
direct appeal period, because doing so left [Appellant's] direct appellate rights unprotected, since his privately retained attorney was not engaged to file a direct appeal. This argument, to the extent it has any merit, could have been, and essentially was, raised in [Appellant's] prior PCRA petitions and appeals.PCRA Court Opinion, 9/27/23, at 4.
In the instant appeal, Appellant does not directly challenge the PCRA court's determination that he failed to establish the newly-discovered facts exception. Though he disputes the PCRA court's characterization of his claim as merely rehashing his prior claim, see Appellant's Brief at 7-12, he does not explain how the claim is based on previously unknown facts which he could not have ascertained by the exercise of due diligence.
We agree with the PCRA court's analysis, and discern no error in its conclusion that Appellant failed to establish a timeliness exception. As we conclude the PCRA court properly dismissed Appellant's petition as untimely, we need not address the issues raised in his brief.
In his first issue, Appellant claims the PCRA court erred in deeming his amended petition as untimely filed beyond the 20-day deadline. Appellant's Brief at 6-7 (asserting the "prisoner mailbox rule"). However, the PCRA court did not merely reject the filing as untimely, but alternatively reached its merits in concluding it failed to establish an exception to the PCRA's time-bar. See Order, 4/21/23. Therefore, Appellant's first issue lacks merit. In his second issue, Appellant essentially argues the PCRA court erred in not granting relief on his underlying ineffectiveness claim. Appellant's Brief at 12-16. Because Appellant failed to establish an exception to the PCRA's time-bar, the PCRA court properly declined to reach the merits of his claim. We further note that Appellant failed to identify this issue in his Pa.R.A.P. 1925(b) statement. See Pa.R.A.P. 1925(b) Statement, 8/31/23; see also Pa.R.A.P. 1925(b)(4)(vii) ("Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph [] are waived.").
Order affirmed.
Judgment Entered.