J-S29024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JAMAL TATE JOHNSON

                            Appellant                No. 1429 WDA 2014


                   Appeal from the PCRA Order July 15, 2014
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0008754-1997
                                          CP-02-CR-0009809-1997


BEFORE: PANELLA, J., MUNDY, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.:                         FILED FEBRUARY 11, 2016

        Appellant, Jamal Tate Johnson, appeals from the July 15, 2014 order,

dismissing as untimely his first petition for relief filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.         After careful

review, we affirm.

        The procedural history of this case is as follows. On August 24, 1998,

Appellant pled nolo contendre to four drug offenses.1 October 15, 1998, the

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*
    Retired Senior Judge assigned to the Superior Court.
1
  Specifically, at docket number CP-02-CR-0008754-1997, Appellant pled
nolo contendre to two counts of manufacturing, delivering, or possessing a
controlled substance with the intent to deliver (PWID), and one count each
of unauthorized sale or refill of a controlled substance, and possession of a
controlled substance.    35 P.S. § 780-113(a)(30), (a)(15), and (a)(16),
(Footnote Continued Next Page)
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trial court imposed an aggregate judgment of sentence of 6 to 20 years’

imprisonment.2       Appellant filed a timely post-sentence motion, which was

denied by operation of law on February 22, 1999. Appellant did not file an

appeal with this court. On November 13, 2013, Appellant filed the instant

PCRA petition, his first.          Appellant titled his petition as a motion for

resentencing pursuant to the PCRA and a motion to correct an erroneous

sentence nunc pro tunc.           The PCRA court properly treated it as a PCRA

petition. See id. § 9543(a)(2)(vii) (listing as cognizable under the PCRA a

claim that the petitioner’s sentence is “greater than the lawful maximum[]”).

      On March 7, 2014, the PCRA court gave notice of its intent to dismiss

Appellant’s PCRA petition pursuant to Rule 907.           Counsel did not file a

response to the PCRA court’s 907 notice, nor did Appellant file a pro se

response.    On July 15, 2014, the PCRA court dismissed Appellant’s PCRA

petition as untimely.       On August 11, 2014, Appellant filed a timely pro se

notice of appeal.3

                       _______________________
(Footnote Continued)

respectively. At docket number CP-02-CR-0009809-1997, Appellant pled
nolo contendre to one additional count of PWID.
2
  Specifically, the trial court sentenced Appellant to three to ten years’
imprisonment on one of the PWID convictions at docket number 8754-1997,
and a consecutive three to ten years’ imprisonment on the PWID count at
docket number 9809-1997, for an aggregate judgment of sentence of 6 to
20 years’. No further penalty was imposed on the remaining convictions.
3
 The PCRA court did not direct Appellant to file a concise statement of
matters complained of on appeal pursuant to Pennsylvania Rule of Appellate
(Footnote Continued Next Page)


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      On appeal, Appellant presents the following issues for our review.

               I.      Whether the PCRA court erred in finding that []
                       Appellant’s instant PCRA petition was not
                       timely filed under the purview of 42 Pa.C.S.
                       § 9545(B)(1)(ii) and 42 Pa.C.S. § 9545?

               II.     Whether the PCRA court erred in failing to
                       exercise [its] inherent power to correct patent
                       error(s) despite the absence of trad[it]ional
                       jurisdiction, which has resulted in Appellant
                       being sentence[d] under the aggravated range
                       as opposed to the standard range?

               III.    Whet[h]er the PCRA court erred in finding that
                       the sentencing court did not err by imposing
                       the instant sentence under the aggravated
                       range as opposed to the standard range as
                       ordered by the sentencing court?

Appellant’s Brief at 4.

      We begin by noting our well-settled standard of review. “In reviewing

the   denial    of    PCRA    relief,   we   examine   whether   the   PCRA   court’s

determination is supported by the record and free of legal error.”
                       _______________________
(Footnote Continued)

Procedure 1925(b).         The PCRA court authored a Rule 1925(a) opinion on
January 30, 2015.

       Further, we note that on September 9, 2014, Appellant’s PCRA counsel
filed a motion to withdraw in the PCRA court, indicating that he was not
retained to represent Appellant on appeal. On September 19, 2014, the
PCRA court granted counsel’s petition to withdraw. On May 20, 2015, we
entered a per curiam order, remanding this case pursuant to
Commonwealth v. Stossel, 17 A.3d 1286, 1290 (Pa. Super. 2011), and
instructing the PCRA court to determine whether Appellant was indigent and
therefore entitled to court-appointed counsel in his appeal from the denial of
his first PCRA petition. On October 20, 2015, the PCRA court determined
Appellant was indigent and appointed counsel. On December 17, 2015,
Appellant’s counsel submitted a brief for our review.



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Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation

marks and citation omitted). “The 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 trial level.”    Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).       “It is well-settled

that a PCRA court’s credibility determinations are binding upon an appellate

court so long as they are supported by the record.”       Commonwealth v.

Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this

Court reviews the PCRA court’s legal conclusions de novo. Commonwealth

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

      Appellant’s first issue on appeal raises the “newly discovered fact”

exception to the PCRA time-bar. Appellant’s Brief at 13. Therein, Appellant

contends that the PCRA court erred in dismissing his petition as untimely.

Id. The timeliness of Appellant’s PCRA petition implicates the jurisdiction of

this Court and the PCRA court.      Commonwealth v. Davis, 86 A.3d 883,

887 (Pa. Super. 2014) (citation omitted).     Pennsylvania law is clear that

when “a PCRA petition is untimely, neither this Court nor the trial court has

jurisdiction over the petition.”   Commonwealth v. Seskey, 86 A.3d 237,

241 (Pa. Super. 2014) (citation omitted), appeal denied, 101 A.3d 103 (Pa.

2014). The “period for filing a PCRA petition is not subject to the doctrine of

equitable tolling; instead, the time for filing a PCRA petition can be extended

only if the PCRA permits it to be extended[.]” Commonwealth v. Ali, 86


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A.3d 173, 177 (Pa. 2014) (internal quotation marks and citation omitted),

cert. denied, Ali v. Pennsylvania, 135 S. Ct. 707 (2014). This is to “accord

finality to the collateral review process.”     Commonwealth v. Watts, 23

A.3d 980, 983 (Pa. 2011) (citation omitted). “However, an untimely petition

may be received when the petition alleges, and the petitioner proves, that

any of the three limited exceptions to the time for filing the petition, set

forth   at    42   Pa.C.S.A.   §   9545(b)(1)(i),   (ii),   and   (iii),   are   met.”

Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) (citation

omitted). Section 9545 sets forth the three exceptions to the PCRA time-bar

as follows.

              § 9545. Jurisdiction and proceedings

                                         …

              (b) Time for filing petition.—

                    (1) Any petition under this subchapter,
                    including a second or subsequent petition, shall
                    be filed within one year of the date the
                    judgment becomes final, 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


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                       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). A PCRA petition invoking one of these time-bar

exceptions must “be filed within 60 days of the date the claim could have

been presented.” Id. § 9545(b)(2). “A petitioner fails to satisfy the 60-day

requirement of Section 9545(b) if he or she fails to explain why, with the

exercise of due diligence, the claim could not have been filed earlier.”

Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008).

     Herein, Appellant was sentenced on October 15, 1998, and his post-

sentence motion was denied on February 22, 1999. Appellant did not file an

appeal with this court.   Consequently, Appellant’s judgment of sentence

became final on March 24, 1999, when the time to file a notice of appeal

with this Court expired. See 42 Pa.C.S.A. § 9545(b)(3) (stating a judgment

of sentence becomes final at the conclusion of direct review); Pa.R.A.P.

903(a) (providing that a notice of appeal must be filed within 30 days of the

order being appealed). Accordingly, Appellant had until March 24, 2000, to

file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1) (providing that a

PCRA petition must be filed within one year of the judgment of sentence

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becoming final to be considered timely).      Therefore, Appellant’s current

petition, his first, filed on November 13, 2013, was facially untimely. See

id.

      Appellant acknowledges that he did not file the current PCRA petition

within one year of his judgment of sentence becoming final.        Appellant’s

Brief at 13.      Appellant argues, however, that the PCRA court erred in

dismissing his petition because the “newly discovered fact” exception to the

time-bar enumerated in Section 9545 applies in this case. Id. Specifically,

Appellant invokes the exception based on the “fact” that his sentences were

beyond the aggravated range of the sentencing guidelines, which he

purportedly did not discover until mid-September 2013.       Id.    Appellant

claims he meets the exception to the time-bar because he filed the current

PCRA petition within 60 days of discovering the fact that the trial court

departed from the sentencing guidelines in imposing his sentence. Id.

      We conclude that Appellant has not met his burden of proving that the

newly discovered facts exception applies. Our Supreme Court has explained

that the newly discovered fact exception in Section 9545(b)(1)(ii) “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. Bennett, 930 A.2d 1264, 1270-1272

(Pa. 2007).      “Due diligence demands that the petitioner take reasonable

steps to protect his own interests.” Commonwealth v. Brown, 111 A.3d


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171, 176 (Pa. Super. 2015) (citation omitted), appeal denied, 125 A.3d

1197 (Pa. 2015). We strictly enforce this rule. Id.

       Instantly, at the time of his sentencing, Appellant was aware of the

sentencing guidelines and any discrepancy between the guidelines and his

sentence should have been apparent to him. The guideline sentence forms,

upon which Appellant bases his claims, are part of the public record of this

case and have been available for Appellant’s review since the time of his

sentencing on October 15, 1998. Appellant has failed to plead or prove any

explanation as to why, in the exercise of due diligence, he could not have

learned of any alleged sentencing errors within the one-year period

prescribed by the PCRA. Therefore, Appellant’s attempt to invoke the “newly

discovered facts” exception to the PCRA time-bar fails.        See Bennett,

supra. Accordingly, we conclude that the record supported the PCRA court’s

determination that Appellant’s PCRA petition was untimely and did not meet

the time-bar exception and the PCRA court did not err as a matter of law.4

See Fears, supra.



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4
  Based on our resolution of this issue, neither this Court or the PCRA court
have jurisdiction to address Appellant’s remaining sentencing issues, even if
they implicate the legality of his sentence. See Seskey, supra (explaining
“[t]hough not technically waivable, a legality [of sentence] claim may
nevertheless be lost should it be raised for the first time in an untimely PCRA
petition for which no time-bar exception applies, thus depriving the court of
jurisdiction over the claim[]”) (brackets in original; citation omitted).



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     Based on the foregoing, we conclude the PCRA court properly

dismissed Appellant’s PCRA petition as untimely.   See id.   Therefore, the

PCRA court’s July 15, 2014 order is affirmed.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/11/2016




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