J-S23030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
    ANTHONY BERNARDLY JONES               :
                                          :
                    Appellant             :   No. 3152 EDA 2016

            Appeal from the PCRA Order Dated September 13, 2016
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0003796-2002


BEFORE: OLSON, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY SOLANO, J.:                               FILED JUNE 09, 2017

        Appellant Anthony Bernardly Jones appeals pro se from the order

dismissing as untimely his third petition filed pursuant to the Post Conviction

Relief Act, 42 Pa.C.S. §§ 9541-46. We affirm.

        On March 9, 2004, following a jury trial, Appellant was convicted of

resisting arrest, recklessly endangering another person (REAP), possession

of a firearm with an altered manufacturer’s number, and two counts of illegal

possession of a firearm.1       On April 21, 2004, the trial court sentenced

Appellant to the following terms of incarceration, to be served consecutively:

16-36 months for REAP; 6-12 months for resisting arrest; and 30-96 months

for each count of illegal possession of a firearm. The trial court also imposed

a sentence of 16-48 months’ incarceration for possession of a firearm with

1
    18 Pa.C.S. §§ 2705, 5104, 6110.2(a), and 6105(a).
J-S23030-17


an altered manufacturer’s number, which was to be served concurrently with

the other sentences.

      On March 16, 2005, this Court affirmed the judgment of sentence, and

on November 2, 2005, the Supreme Court of Pennsylvania denied

Appellant’s petition for allowance of appeal.        Commonwealth v. Jones,

1542 EDA 2004 (Pa. Super. Mar. 16, 2005) (unpublished memorandum),

appeal denied, 887 A.2d 1240 (Pa. 2005).

      On March 13, 2006, Appellant filed his first PCRA petition. The PCRA

court denied relief, and, after two remands, this Court affirmed the PCRA

court’s order denying relief.    Commonwealth v. Jones, 2 A.3d 650 (Pa.

Super. 2010). Appellant did not file a petition for allowance of appeal in the

Supreme Court of Pennsylvania.

      On December 28, 2015, Appellant filed a “Motion to Vacate Conviction

Based on Structural Defects in the Trial Mechanism.”                The trial court

construed this motion as a second PCRA petition and dismissed it as

untimely on February 22, 2016. Appellant did not file an appeal.

      On June 13, 2016, Appellant filed the instant pro se PCRA petition,

relying on Johnson v. United States, 135 S. Ct. 2551, 2558 (2015)

(holding   that   the   definition   of   “violent   felony”   in   the   sentencing

enhancement “residual clause” of the Armed Career Criminal Act of 1984, 18

U.S.C.A. § 924(e)(2)(B)(ii), was unconstitutionally vague), and Welch v.

United States, 136 S. Ct. 1257, 1268 (2016) (holding that Johnson



                                          -2-
J-S23030-17


applied retroactively to cases on collateral review).        The PCRA court

appointed counsel, who filed a Turner/Finley2 “no merit” letter and a

motion to withdraw.

      On August 26, 2016, the PCRA court issued a notice pursuant to

Pa.R.Crim.P. 907 that stated its intent to dismiss Appellant’s petition without

a hearing. The PCRA court explained that Johnson applied to the federal

Armed Career Criminal Act, not to any statute Appellant was convicted of

violating.   Rule 907 Notice, 8/26/16.    The PCRA court also found that the

federal statute at issue in Johnson was not similar to the state statutes at

issue in Appellant’s case.    Id.   The PCRA court added: “The remainder of

[Appellant’s] claims, regarding the discretionary aspects of his sentence,

remain untimely as addressed in his two previous PCRA filings with this

[c]ourt.”    Id.   In the notice, the trial court granted counsel’s motion to

withdraw.

      On September 8, 2016, Appellant, pro se, filed a “Request for an

Enlargement of Time Before PCRA is Dismissed to Allow Petitioner to Amend

Third PCRA Petition.” Appellant sought to add claims that his sentence was

illegal because (1) the Pennsylvania Board of Probation and Parole had




2
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).




                                      -3-
J-S23030-17


incorrectly calculated the end date of his maximum sentence,3 and (2)

Appellant was denied the right to counsel at his sentencing hearing. In his

request, Appellant did not mention any statutory exception to the PCRA’s

time bar.

      On September 13, 2016, the PCRA court issued an order dismissing

Appellant’s petition. In that order, the court stated that it lacked jurisdiction

over Appellant’s legality of sentence claims because they were untimely and

Appellant failed to assert an exception to the PCRA’s time bar.

      On October 6, 2016, Appellant filed a timely notice of appeal.          On

November 2, 2016, Appellant filed a timely Pa.R.A.P. 1925(b) statement of

matters complained of on appeal, in which he raised only the claims he had

set forth in his September 8, 2016 request for enlargement of time.          On

November 10, 2016, the PCRA court issued a Pa.R.A.P. 1925(a) statement,

explaining that the reasons for its dismissal of Appellant’s third PCRA petition

could be found in its opinion and orders dated August 26, 2016 and

September 13, 2016.

      On appeal, Appellant raises the following issues, as stated in his brief:

3
   On May 14, 2010, the Board of Probation and Parole granted Appellant
parole, and informed him that his maximum date was October 15, 2021. On
December 3, 2010, the Board reaffirmed its May 14 order.                  On
December 17, 2010, the Board modified its May 14 and December 3 orders
“to reflect the correct maximum date” of October 2, 2023. See Request for
an Enlargement of Time and attachments, 9/8/16. In his brief, Appellant
notes that there is no court order modifying his sentence and speculates that
the trial court communicated ex parte with the Board. Appellant’s Brief at
25. Appellant cites no evidence of this alleged ex parte communication.



                                      -4-
J-S23030-17


      1. (a) Is it the constitutional duty of trial/sentencing court,
      whether requested or not, to assign counsel to assist a
      defendant as a necessary requisite to due process of law; and
      (b) pursuant to Pa.R.Crim. P. 121, is it the duty of the
      trial/sentencing court to obtain on the record an intelligent,
      knowing, voluntary waiver of counsel from a defendant prior to
      allowing him/her to proceed into a trial/sentencing without the
      assistance of counsel?

      2. Can a judge unilaterally modify a sentence six (6) years after
      its imposition?

Appellant’s Brief at 2.

      The PCRA court dismissed Appellant’s petition as untimely.                   “This

Court’s standard of review regarding an order dismissing a petition under

the PCRA is to determine whether the determination of the PCRA court is

supported   by   the      evidence   of   record   and   is   free   of   legal   error.”

Commonwealth v. Furgess, 149 A.3d 90, 93 (Pa. Super. 2016) (quotation

marks and citation omitted). In addition:

      The timeliness of a post-conviction petition is jurisdictional.
      Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super.
      2013). Generally, a petition for relief under the PCRA, including
      a second or subsequent petition, must be filed within one year of
      the date the judgment is final unless the petition alleges and the
      petitioner proves one of the three exceptions to the time
      limitations for filing the petition set forth in Section 9545(b)(1)
      of the statute. See 42 Pa.C.S. § 9545(b).

Id. at 92 (footnote omitted).

      Appellant’s judgment of sentence became final on January 31, 2006,

when the ninety-day time period for filing a petition for a writ of certiorari

with the United States Supreme Court expired.             See U.S. Sup. Ct. R. 13

(requiring that petition for writ of certiorari be filed within 90 days of order


                                          -5-
J-S23030-17


denying review by state court of last resort); 42 Pa.C.S. § 9545(b)(3)

(explaining that “a judgment becomes final at the conclusion of direct

review, including discretionary review in the Supreme Court of the United

States and the Supreme Court of Pennsylvania, or at the expiration of time

for seeking the review”).   Appellant’s present petition was not filed until

June 13, 2016, nine and one-half years after the PCRA’s one-year filing

deadline. Appellant did not assert a statutory exception to the PCRA’s time

bar in his PCRA petition or in his response to the PCRA court’s Rule 907

notice. Therefore, the PCRA court properly dismissed Appellant’s petition for

lack of jurisdiction. See Furgess, 149 A.3d at 92-93.

      In his brief, Appellant argues, “Pennsylvania Courts have permitted

allegations of miscarriage of justice to override the waiver provisions of the

PCRA and have therefore reached the merits of such claims in successive

petitions.”   Appellant’s Brief at 20 (citing Commonwealth v. Allen, 732

A.2d 582 (Pa. 1999); Commonwealth v. Reese, 663 A.2d 206 (Pa. Super.

1995); Commonwealth v. Williams, 660 A.2d 614 (Pa. Super. 1995),

appeal denied, 674 A.2d 1071 (Pa. 1996)).         Appellant’s “miscarriage of

justice” argument is misplaced. This Court has explained:

      [T]he courts of Pennsylvania will only entertain a “miscarriage of
      justice” claim when the initial timeliness requirement is met. See
      Commonwealth v. Fahy, 558 Pa. 313, 330–331, 737 A.2d 214,
      223 (1999), cert. denied, 534 U.S. 944, 122 S. Ct. 323, 151 L.
      Ed. 2d 241 (2001). Although the courts will review the request
      in a second or subsequent collateral attack on a conviction if
      there is a strong prima facie showing that a miscarriage of
      justice occurred, Commonwealth v. Morales, 549 Pa. 400,


                                    -6-
J-S23030-17


      409–410, 701 A.2d 516, 520–521 (1997), there is no
      “miscarriage of justice” standard exception to the time
      requirements of the PCRA. Fahy, 558 Pa. at 331, 737 A.2d at
      223.

Commonwealth v. Burton, 936 A.2d 521, 527 (Pa. Super. 2007), appeal

denied, 959 A.2d 927 (Pa. 2008). Because Appellant has not satisfied the

timeliness requirement, we may not entertain an miscarriage of justice

claim.

      In his reply brief, Appellant adds that the PCRA court erred by

dismissing his petition because, “until this current date, Appellant has not

had the opportunity to ‘prove’ before the PCRA court that any of his

allegations could meet the PCRA timeliness exceptions.”   Appellant’s Reply

Brief at 3-4. Appellant appears to argue that the PCRA court did not allow

him to amend his petition, and therefore that he did not have the

opportunity to invoke an exception to the time bar.

      It was Appellant’s obligation to plead in his petition that one of the

three statutory exceptions applied.    See Commonwealth v. Derrickson,

923 A.2d 466, 468-69 (Pa. Super.), appeal denied, 934 A.2d 72 (Pa.

2007).   In response to the PCRA court’s Rule 907 notice, Appellant could

have sought to amend his petition to allege a time-bar exception. See id. at

469. He did not. While Appellant did seek leave to amend his petition, he

did not mention any statutory exception to the PCRA’s time bar when he did

so.   Because Appellant did not satisfy his pleading obligations, the PCRA




                                      -7-
J-S23030-17


court properly held that it lacked jurisdiction over Appellant’s untimely third

PCRA petition. See id. at 468-69.

      Based on the foregoing, we affirm the PCRA court’s order denying

Appellant post-conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/9/2017




                                     -8-
