Opinion
J-S49034-17 No. 1852 WDA 2016
08-30-2017
COMMONWEALTH OF PENNSYLVANIA v. CALVIN JOHNSON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order November 8, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0005737-1976 BEFORE: DUBOW, SOLANO, and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Calvin Johnson, appeals pro se from the order entered in the Allegheny County Court of Common Pleas dismissing his seventh Post Conviction Relief Act ("PCRA") petition as untimely. Appellant claims that his second PCRA petition was improperly dismissed and his current PCRA counsel was ineffective. We affirm.
42 Pa.C.S. §§ 9541-9546.
We adopt the facts and procedural history set forth by the PCRA court's opinions. See PCRA Ct. Op., 3/9/17, at 1-3; PCRA Ct. Op., 11/8/16, at 1-3. In 1977, Appellant was sentenced to an aggregate term of twenty-eight and one-half to fifty-seven years' imprisonment following his convictions for reckless endangerment, terroristic threats, kidnapping, robbery, and criminal conspiracy. Instantly, Appellant raises the following issues for review:
18 Pa.C.S. § 2705.
18 Pa.C.S. § 2706.
18 Pa.C.S. § 2901.
18 Pa.C.S. § 3701.
18 Pa.C.S. § 903.
I. Whether the PCRA [court] erred by not ruling [on] counsel's ineffectiveness for failing to amend Appellant's PCRA petition with regard to his interference by government officials claim?Appellant's Brief at 3.
II. Whether the PCRA court erred when it omitted from its November 8, 2016 final order and opinion the facts in regard to Appellant's interference by government officials clam, argued during Appellant's October 14, 2016 PCRA evidentiary hearing?
III. Whether the PCRA court erred by failing to quash appointed PCRA counsel's "no Merit" letter since it had been procedurally [defective] when it violated the standards outlined in Turner/Finley ?
IV. Whether the PCRA court erred when it over the objection of [ ] Appellant, permitted counsel who was no longer the counsel of record to amend her procedural[ly] [defective] "no merit" letter?
Pro se Appellant argues that his instant seventh PCRA petition is timely pursuant to the governmental interference exception to the PCRA time bar under 42 Pa.C.S. § 9545(b)(1)(i). The crux of Appellant's argument concerns his contention that his second PCRA petition was erroneously dismissed by the PCRA court in 1990 because the court incorrectly found that his claims had been "previously litigated." He also avers that the court never instructed him regarding his right to appeal from that decision. Appellant asserts that he did not discover this mistake until October 5, 2015, and filed the instant petition within sixty days of his discovery. Likewise, Appellant claims that his most recent PCRA counsel was ineffective for failing to file an amended PCRA petition on his behalf to properly reflect his arguments. Appellant also points out that his PCRA counsel's Turner/Finley brief submitted to the PCRA court was procedurally defective, and he submits that the PCRA court erred by allowing PCRA counsel to amend her "no merit" letter.
Appellant filed his first petition for post conviction relief in 1980 pursuant to the Post Conviction Hearing Act, the predecessor to the PCRA. The instant PCRA petition was filed in 2015. "The amended PCRA provided a one-year grace period . . . to first-time PCRA petitioners whose judgments of sentence became final prior to the effective date[, January 16, 1996,] of the amended Act." Commonwealth v. Robinson , 12 A.3d 477, 479 n.3 (Pa. Super. 2011). Therefore, the grace period does not apply in the present case, as this was not Appellant's first PCRA petition. See id.
Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) (en banc). --------
On appellate review of a PCRA ruling, "we determine whether the PCRA court's ruling is supported by the record and free of legal error." Commonwealth v. Marshall , 947 A.2d 714, 719 (Pa. 2008).
We . . . turn to the time limits imposed by the PCRA, as they implicate our jurisdiction to address any and all of Appellant's claims. To be timely, a PCRA petition must be filed within one year of the date that the petitioner's judgment of sentence became final, unless the petition alleges and the petitioner proves one or more of the following statutory exceptions:
(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.
Id. at 719-20 (some citations omitted and emphasis added).
42 Pa.C.S. § 9545(b)(1).
We emphasize that it is the petitioner who bears the burden to allege and prove that one of the timeliness exceptions applies. In addition, a petition invoking any of the timeliness exceptions must be filed within 60 days of the date the claim first could have been presented. 42 Pa.C.S. § 9545(b)(2). . . .
Our Supreme Court
has repeatedly stated that the PCRA timeliness requirements are jurisdictional in nature and, accordingly, a PCRA court cannot hear untimely PCRA petitions. In addition, we have noted that the PCRA confers no authority upon this Court to fashion ad hoc equitable exceptions to the PCRA time-bar in addition to those exceptions expressly delineated in the Act. We have also recognized that the PCRA's time restriction is constitutionally valid.Commonwealth v. Robinson , 837 A.2d 1157, 1161 (Pa. 2003) (citations and quotation marks omitted).
After careful consideration of Appellant's brief, the record, and the decision of the PCRA court, we affirm on the basis of the PCRA court's opinions. See PCRA Ct. Op., 3/9/17, at 3-5; PCRA Ct. Op., 11/8/16, at 1-4 . (holding: (1) Appellant's current PCRA petition, filed over thirty years after his was judgment of sentence became final, was patently untimely; (2) Appellant has not proven any of the timeliness exceptions because he failed to establish that he could not have discovered a mistake by the PCRA court, made in 1990, through the exercise of due diligence, or filed the instant petition within sixty days of the date the claim could have been presented; (3) PCRA counsel was not ineffective but instead provided "competent representation" and "thoroughly discharged her duties"). Accordingly, we affirm the PCRA court's dismissal of Appellant's petition.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/30/2017
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