J-S11014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 MICHAEL LEVANT JOHNSON                    :
                                           :
                    Appellant              :   No. 2419 EDA 2018

                Appeal from the Order Entered July 10, 2018
    In the Court of Common Pleas of Chester County Criminal Division at
                      No(s): CP-15-CR-0003533-2006,
                          CP-15-CR-0003572-2006


BEFORE: SHOGAN, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.:                                FILED MAY 07, 2019

      Appellant, Michael Levant Johnson, appeals pro se from the order

denying his petition for writ of habeas corpus. We conclude that Appellant’s

filing was actually an untimely petition for collateral relief under the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After review, we

affirm the order dismissing Appellant’s filing, but we do so on grounds different

than the lower court. See Commonwealth v. Wilcox, 174 A.3d 670, 674

n.4 (Pa. Super. 2017) (explaining that the Superior Court is not bound by the

rationale of the lower court, and we may affirm the trial court’s order on any

basis supported by the record).

      In its Pa.R.A.P. 1925(a) opinion, the lower court set forth the relevant

facts of this case as follows:
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           On August 12, 2006, at approximately 1:00 a.m.,
     [Appellant] entered the home of Calvin Buchanan and stabbed
     Buchanan through the heart.           After stabbing Buchanan,
     [Appellant] immediately ran away from the scene. Buchanan bled
     to death in his home, unable to receive emergency treatment. On
     August 13, 2006, [Appellant] was apprehended by the Coatesville
     Police Department. During a search of [Appellant’s] home, the
     police recovered [Appellant’s] clothing which was covered in
     blood. Subsequent DNA reports revealed the blood was that of the
     victim, Buchanan.

           [Appellant] was sentenced on January 11, 2008 by the
     Honorable James P. MacElree, II, as the result of a guilty plea on
     the charges of murder in the third degree and flight to avoid
     apprehension (Case No. 3533-2006). The same day, [Appellant]
     was also sentenced in Case No. 3572-2006 on the charge of
     intentional possession of controlled substance.

            [Appellant] sought to withdraw his guilty plea after
     sentencing with the filing of a pro se motion on January 25, 2008
     in which [Appellant] alleged ineffective assistance of counsel.
     After a hearing, this motion was denied by Judge MacElree;
     however, having found a conflict existed between [Appellant] and
     the Office of the Public Defender, Judge MacElree appointed
     conflict counsel, Scott D. Godshall, Esquire, for purposes of any
     post-sentence and/or appellate proceedings.

            On February 11, 2008, [Appellant] filed a timely direct
     appeal.1 Attorney Godshall was subsequently removed as counsel
     and replaced by Mark D. Rassman, Esquire by Order dated
     April 28, 2008. On appeal, [Appellant] asserted that the court’s
     oral plea colloquy was insufficient such that his plea should be
     deemed “null and void.” On June 25, 2009, the Superior Court
     affirmed [Appellant’s] guilty plea and negotiated sentence,
     thereby dismissing the appeal. Meanwhile, [Appellant] filed a
     second notice of appeal, pro se, on June 3, 20092 which was
     denied and the matter remitted on March 29, 2010.

           1 [Commonwealth v. Johnson, 981 A.2d 314, 625
           EDA 2008 (Pa. Super. filed June 25, 2009)
           (unpublished memorandum)].




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              2 [Commonwealth v. Johnson, 996 A.2d 8, 1709
              EDA 2009 (Pa. Super. filed February 5, 2010)
              (unpublished memorandum)].

              On October 14, 2009, [Appellant] filed a pro se PCRA
       petition. Attorney Robert P. Brendza, Esquire was appointed to
       represent [Appellant] in the post-conviction proceedings. On
       November 24, 2009, Attorney Brendza filed a petition for leave to
       withdraw as PCRA counsel on the basis that [Appellant’s] PCRA
       claim presented no issues of arguable merit. [Appellant] objected
       to Attorney Brendza’s “Finley-Turner Letter”[1] and request to
       withdraw. On January 26, 2010, Judge MacElree scheduled a
       hearing on [Appellant’s] PCRA petition; however, on March 19,
       2010, the PCRA court granted [Appellant] the right to file a nunc
       pro tunc Petition for Allowance of Appeal with the Supreme Court
       of Pennsylvania and dismissed the remaining claims asserted in
       the PCRA petition. The Supreme Court denied the Allowance of
       Appeal on August 31, 2010.3

              3 [Commonwealth v. Johnson, 4 A.3d 157, 272
              MAL 2010 (Pa. filed August 31, 2010)].

              On August 5, 2011, [Appellant] filed a subsequent pro se
       PCRA petition. By Order dated December 7, 2011, the PCRA court
       appointed counsel, Laurence Harmelin, Esquire. [Appellant’s]
       PCRA petition alleged that his guilty plea was involuntary and that
       his trial counsel, appellate counsel and prior PCRA counsel were
       all ineffective. Attorney Harmelin filed an Amended PCRA petition
       on November 16, 2012. The Commonwealth filed a response on
       December 19, 2012. A PCRA hearing was held on January 22,
       2013 and was limited to the issue of whether trial counsel’s
       ineffectiveness caused [Appellant] to enter an involuntary or
       unknowing guilty plea. [Appellant’s] PCRA petition was denied by
       Order dated February 20, 2013.

             [Appellant] appealed the PCRA dismissal to the Superior
       Court on March 8, 2013.4 For this appeal, [Appellant] was
       represented by Brenda L. Jones, Esquire. Following a request by
____________________________________________


1   See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)
(setting forth the requirements for counsel to withdraw in a collateral
proceeding).

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       [Appellant] to dismiss Attorney Jones as counsel and an on the
       record colloquy, Attorney Jones was granted leave to withdraw.
       In this appeal, [Appellant] again challenged the effectiveness of
       his trial counsel and the voluntariness of the guilty plea entered
       on the charge of third degree murder. The Superior Court
       affirmed dismissal of the PCRA petition by Order dated July 8,
       2015.

              4[Commonwealth v. Johnson, 125 A.3d 439, 824
              EDA 2013 (Pa. Super. filed July 8, 2015) (unpublished
              memorandum)].

              [Appellant] then filed a Petition for Writ of Habeas Corpus in
       the U.S. District Court for the Eastern District of Pennsylvania.
       The record was transferred to the District Court for further
       proceeding under docket number 2015-cv-04242. By Order dated
       August 30, 2017, the Petition for Writ of Habeas Corpus was
       denied. [Appellant] appealed to the Third Circuit Court of Appeals
       on September 28, 2017. On May 4, 2018, the request for a
       certificate of appealability was denied. The record was remanded
       to the trial court in Chester County.

             Undeterred, on June 23, 2018, [Appellant] filed a pro se Writ
       of Habeas Corpus and/or Motion for Application of RRRI Eligibility.5
       This court denied the motion by Order dated July 10, 2018.
       [Appellant then submitted an Application for Reargument En Banc
       and/or Objection to Denial of RRRI Eligibility. The court denied
       same by Order of August 3, 2018. It is from these Orders which
       [Appellant] now appeals.[2]


____________________________________________


2  In his notice of appeal, Appellant states that he appealed from the July 10,
2018 order. As the lower court noted, Appellant filed an application for relief
following the July 10, 2018 order that was denied on August 3, 2018.
However, Appellant did not appeal the August 3, 2018 order. Although
Appellant’s notice of appeal was filed and docketed on August 10, 2018, thirty-
one days after the entry of the July 10, 2018 order, we consider the appeal
timely. Because Appellant was incarcerated and the record reflects that he
placed his notice of appeal in the prison mail on August 6, 2018, his appeal is
deemed filed on that date pursuant to the prisoner mailbox rule. See
Commonwealth v. Johnson, 192 A.3d 1149, 1152, n.4 (Pa. Super. 2018)
(stating that a pro se prisoner’s document is treated as filed on the date he
delivers it to prison authorities for mailing).

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          5 Upon further consideration, it could be argued that
          this court should have treated [Appellant’s] motion as
          his third PCRA petition. As it was a subsequent PCRA
          petition and presented no issues of arguable merit,
          this court would have refused to appoint counsel.

                Before this court could have addressed the
          merits of [Appellant’s] claims, we would have had to
          determine whether the PCRA petition was timely filed.
          Pursuant to 42 Pa.C.S.A. §9545(b)(1), a PCRA petition
          must be filed within one year of the date that the
          challenged judgment becomes final. This petition was
          patently untimely given that it was filed more than
          one year after his guilty plea and negotiated sentence
          was affirmed by the Superior Court on June 25, 2009
          and the Supreme Court’s denial of an Allowance of
          Appeal on August 31, 2010.

                 There are three exceptions to the one year filing
          deadline.      42 Pa.C.S.A. §9545(b)(1)(i-iii).      The
          timeliness exceptions involve “(1) interference by
          government officials in the presentation of the claim;
          (2) newly-discovered facts; and (3) an after-
          recognized constitutional right.” Commonwealth v.
          Brandon, 51 A.3d 231, 233-34 (Pa. Super. 2012). A
          PCRA petition invoking one of these exceptions must
          “be filed within 60 days of the date the claims could
          have been presented.[”]            See, 42 Pa.C.S.A.
          §9545(b)(2). Thus, [Appellant] would have been
          required to establish his entitlement to a timeliness
          exception. Presumably [Appellant] would argue that
          this petition asserts an after-recognized constitution
          right. However, [Appellant] would have been unable
          to establish his right to such exception because his
          petition was not filed within 60 days following the
          enactment of the RRRI Act. The RRRI Act became
          effective on November 24, 2008. [Appellant] did not
          file this petition until June 23, 2018, nearly ten years
          later. Moreover, it is doubtful that the RRRI Act
          amounts to an after-recognized constitutional right as
          [the] statute does not increase any rights due to such
          a defendant or impose any legal burden of additional
          punishment, but merely provides a treatment
          opportunity intended to prevent recidivism.

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                     As a result, this court would have lacked any
              jurisdiction to consider the merits of [Appellant’s]
              petition, even had we treated it as a PCRA petition.
              See, Commonwealth v. Robinson, 837 A.2d 1157 (Pa.
              2003) (The timeliness of a PCRA petition is petition is
              jurisdictional requisite). Any such error in failing to
              do so was harmless.

Trial Court Opinion, 9/17/18, at 2-5.            Appellant filed a timely appeal on

August 6, 2018.3       Both the PCRA court and Appellant have complied with

Pa.R.A.P. 1925.

       On appeal, Appellant raises the following issues:

       1. Is Appellant entitled to retroactive application of the “RRRI Act”
       being a first time violent offender.

       2. Is Appellant’s sentence illegal absent a hearing to determine
       RRRI Eligibility.

       3. Whether Appellant’s Attorney is ineffective for not preserving
       the issue of RRRI Eligibility on direct appeal.

       4. Is Appellant automatically eligible due to the RRRI statute
       becoming activated while Appellant was on direct appeal,
____________________________________________


3  We note that on June 1, 2018, our Supreme Court held that, prospectively,
“when a single order resolves issues arising on more than one lower court
docket, separate notices of appeal must be filed. The failure to do so will
result in quashal of the appeal.” Commonwealth v. Walker, 185 A.3d 969,
977 (Pa. 2018). Appellant filed a single notice of appeal that contained both
trial court docket numbers as he has done for more than eleven years.
Facially, this would appear to violate Walker. However, these two docket
numbers have been treated as a single case by the trial court and this Court
since Appellant’s first appeal was filed on February 14, 2008.           See
Commonwealth v. Johnson, 981 A.2d 314, 625 EDA 2008 (Pa. Super. filed
June 25, 2009) (unpublished memorandum); Commonwealth v. Johnson,
996 A.2d 8, 1709 EDA 2009 (Pa. Super. filed February 5, 2010) (unpublished
memorandum); and Commonwealth v. Johnson, 125 A.3d 439, 824 EDA
2013 (Pa. Super. filed July 8, 2015) (unpublished memorandum). Under the
circumstance presented here, we decline to quash the appeal.

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       Appellant was sentenced on January 11, 2008 the RRRI statute
       became effective on November 24, 2008, Appellant’s sentence
       was not final until June 25, 2009.

       5. Whether the lower Court Judge, Jeffrey R. Sommer erred in
       misapplying the law in accordance to the rules of Statutory
       Construction.

Appellant’s Brief at 4 (verbatim).

       As we noted above, and as recognized by the lower court in footnote 5

of its opinion, Appellant’s writ of habeas corpus and/or motion for application

of RRRI eligibility should have been treated as a serial PCRA petition. It is

well settled that “the PCRA is intended to be the sole means of achieving post-

conviction relief.” Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa. Super.

2013) (citations omitted).         Accordingly, any petition for post-conviction

collateral relief will generally be considered under the auspices of the PCRA,

notwithstanding the title given to the petition, if the petition raises issues

cognizable under the PCRA. Commonwealth v. Hutchins, 760 A.2d 50, 52

n.1 (Pa. Super. 2000); 42 Pa.C.S. § 9542.

       The focus of Appellant’s issues is his claim that the sentencing court

failed to make him Recidivism Risk Reduction Incentive (“RRRI”)4 eligible. A

challenge to the trial court’s failure to impose an RRRI sentence implicates the


____________________________________________


4 See 61 Pa.C.S. §§ 4501-4512 (The Recidivism Risk Reduction Incentive Act
or “RRRI” Act). “The [RRRI] Act is intended to encourage eligible offenders to
complete Department of Corrections programs that are designed to reduce
recidivism. See 61 Pa.C.S. §§ 4502, 4504(b). Eligible offenders may also be
able to take advantage of a reduced sentence.         See id. § 4505(c).”
Commonwealth v. Cullen–Doyle, 164 A.3d 1239, 1240 (Pa. 2017).

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legality of the sentence as it is legal error to fail to impose a RRRI minimum

on an eligible offender. Commonwealth v. Finnecy, 135 A.3d 1028, 1033

(Pa. Super. 2016). A challenge to the legality of a sentence cannot be waived

as a general rule; however, it must be raised in a timely PCRA petition.

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999).

      The PCRA “provides for an action by which persons convicted of crimes

they did not commit and persons serving illegal sentences may obtain

collateral relief.” Commonwealth v. Jackson, 30 A.3d 516, 518 (Pa. Super.

2011) (quoting 42 Pa.C.S. § 9542). See also Commonwealth v. Rivera,

95 A.3d 913, 915 (Pa. Super. 2014) (“If no statutory authorization exists for

a particular sentence, that sentence is illegal and subject to correction.”);

Commonwealth v. Hackett, 956 A.2d 978, 986 (Pa. 2008) (explaining that

when considering types of claims that are cognizable under the PCRA, “the

scope of the PCRA eligibility requirements should not be narrowly confined to

its specifically enumerated areas of review”). Accordingly, Appellant’s claim

is cognizable under the PCRA.      Therefore, Appellant’s filing should have

treated as a PCRA petition.

      However, we point out that the timeliness of a PCRA petition is a

jurisdictional threshold and may not be disregarded in order to reach the

merits of the claims raised in a PCRA petition. Commonwealth v. Lawson,

90 A.3d 1, 4 (Pa. Super. 2014). Nevertheless, an untimely petition may be

received when the petition alleges, and the petitioner proves, that any of the


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three limited exceptions to the time for filing the petition, set forth at 42

Pa.C.S. § 9545(b)(1)(i), (ii), and (iii), is met. A petition invoking one of these

exceptions must be filed within one-year from the date the claim could first

have been presented. 42 Pa.C.S. § 9545(b)(2).

       Our review of the record reflects that Appellant’s judgment of sentence

became final on November 29, 2010, ninety days after our Supreme Court

denied Appellant’s petition for allowance of appeal on August 31, 2010, and

time expired for Appellant to seek a writ of certiorari in the United States

Supreme Court.5       42 Pa.C.S. § 9545(b)(3); U.S. Supreme Court Rule 13.

Accordingly, Appellant’s instant PCRA petition, which was filed on June 23,

2018, was untimely.

       As previously stated, if a petitioner does not file a timely PCRA petition,

his petition may nevertheless be received under any of the three limited

exceptions to the timeliness requirements of the PCRA.               42 Pa.C.S.

§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file his



____________________________________________


5 The lower court noted that Appellant filed a second notice of appeal, pro se,
that was disposed of by this Court in a memorandum filed on February 5,
2010. Trial Court Opinion, 9/17/18, at 4 (citing Commonwealth v. Johnson,
996 A.2d 8, 1709 EDA 2009 (Pa. Super. filed February 5, 2010) (unpublished
memorandum).       However, that appeal had no bearing on Appellant’s
judgment of sentence. In that appeal, Appellant challenged the Department
of Corrections making deductions from his inmate account. In our disposition
of that appeal, we concluded that the trial court lacked jurisdiction and
Appellant should have pursued an original action in the Commonwealth Court.
Thus, the February 5, 2010 decision had no impact on the date that Appellant’s
judgment of sentence became final.

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petition within one-year of the date that the exception could be asserted. 42

Pa.C.S. § 9545(b)(2). The burden is on the petitioner to plead and prove facts

that establish one of the statutory exceptions. Commonwealth v. Pew, 189

A.3d 486, 488 (Pa. Super. 2018).

       Appellant argues that the sentencing court should have made him RRRI

eligible despite the fact that when Appellant was sentenced, the RRRI Act was

not yet in effect.     Nevertheless, Appellant avers that the sentencing court

should have applied the RRRI Act retroactively.        Appellant’s Brief at 5.

Appellant provides no relevant authority for this contention. Moreover, as the

lower court pointed out, the RRRI Act went into effect on November 24, 2008.

Trial Court Opinion, 9/17/18, at 5 n.5.6 Thus, Appellant could have raised this

claim over a decade ago, and he provides no cogent explanation as to why he

failed to present this issue previously. After review, we find that nothing in

Appellant’s argument establishes any exception to the PCRA time bar.

       Consequently, because the instant PCRA petition was untimely and no

exceptions apply, the lower court lacked jurisdiction to address the claims

presented and grant relief. See Commonwealth v. Fairiror, 809 A.2d 396,

398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to hear

untimely petition). Likewise, we lack the authority to address the merits of

any substantive claims raised in the PCRA petition. See Commonwealth v.


____________________________________________


6  See also 42 Pa.C.S. § 9756(b.1) (amending the Sentencing Code and
including RRRI eligibility determinations).

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Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (“[J]urisdictional time limits go to

a court’s right or competency to adjudicate a controversy.”).

     Order affirmed.

     P.J.E. Ford Elliott joins this Memorandum.

     Judge Murray concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/7/19




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