J-A21038-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

CALVIN JOHNSON,

                          Appellant                   No. 28 EDA 2015


           Appeal from the PCRA Order entered November 20, 2014,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division, at No(s): CP-51-CR-1021331-1984


BEFORE: ALLEN, MUNDY, and FITZGERALD*, JJ.

MEMORANDUM BY ALLEN, J.:                               FILED JULY 22, 2015

      Calvin Johnson (“Appellant”) appeals pro se from the order denying his

third petition for post-conviction relief filed pursuant to the Post Conviction

Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.

      The pertinent facts and procedural history have been summarized as

follows:

              On September 10, 1985, [Appellant] was found guilty
           by a jury of the offenses of first degree murder and
           possession of an instrument of crime.        The sentence
           imposed by the [trial] court, a term of life imprisonment
           and a consecutive term of from two and one-half to five
           years [of] imprisonment, was affirmed on direct appeal by
           order dated June 12, 1987. The [Pennsylvania] Supreme
           Court denied allowance of appeal on [January 28, 1988].
           Commonwealth v. Johnson, 531 A.2d 32 (Pa. Super.
           1987) (unpublished memorandum), appeal denied, 517



*Justice Fitzgerald, who is specially assigned to the Superior Court, did not
participate in this decision.
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         Pa. 662, 538 A.2d 875 (1988). Appellant then filed a PCRA
         petition, which was denied by the trial court. [This] Court
         affirmed the denial of PCRA relief. Commonwealth v.
         Johnson, 718 A.2d 858 (Pa. Super. 1998) (unpublished
         memorandum), appeal denied, 558 Pa. 599, 735 A.2d
         1268 (1999). Appellant filed a second PCRA petition on
         December 10, 1999, which was dismissed without a
         hearing by the PCRA court on timeliness grounds.

Commonwealth v. Johnson, No. 2402 EDA 2001 (Pa. Super. 2002)

unpublished memorandum at 1-2.            On December 19, 2002, this Court

rejected Appellant’s claim that the PCRA court possessed jurisdiction over his

otherwise   untimely   petition   based    upon   a   claim   of   “government

interference.” Id. at 4 (citing 42 Pa.C.S.A § 9545(b)(1)(i)).

      Appellant filed the PCRA petition at issue, his third, on May 23, 2012.

“After conducting an extensive and exhaustive review,” the PCRA court

concluded that Appellant’s third petition “was untimely filed and that none of

the timeliness exceptions applied.” PCRA Court Opinion, 2/23/15, at 2. This

appeal followed. The PCRA court did not require Pa.R.A.P. 1925 compliance.

      Within his pro se brief, Appellant raises the following issues:

         I. Whether [the PCRA] court possessed jurisdiction of
         government interference claim – namely government fraud
         on the court claim?

         II. Whether [the PCRA court] erred in dismissing
         [Appellant’s third PCRA] petition as untimely pursuant to
         fraud on the court claim?

         III. Whether the Exception Clause to the timeliness
         requirement of [Section] 9545 PCRA Amendments (42
         Pa.C.S.A. § 9545(b)(1)[)] is equivalent to the Martinez v.
         Ryan’s [132 S.Ct. 1309 (2012)], procedural default
         “Cause” law?


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J-A21038-15



Appellant’s Brief at 3.

      This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

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

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).          Moreover, a PCRA court may decline to hold a

hearing on the petition if the PCRA court determines that the petitioner’s

claim is patently frivolous and is without a trace of support in either the

record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011

(Pa. Super. 2001).

      Before addressing the claims raised by Appellant in his pro se brief, we

must first determine whether the PCRA court properly determined that

Appellant’s third PCRA petition was untimely.

       The   timeliness     of    a   post-conviction     petition     is    jurisdictional.

Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation

omitted). Thus, if a PCRA petition is untimely, neither an appellate court nor

the PCRA court has jurisdiction over the petition. Id. “Without jurisdiction,

we simply do not have the legal authority to address the substantive claims”

raised in an untimely petition. Id.




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      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

becomes final unless the petition alleges, and the petitioner proves, an

exception to the time for filing the petition. Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under

these exceptions, the petitioner must plead and prove that: “(1) there has

been interference by government officials in the presentation of the claim; or

(2)   there   exists   after-discovered    facts   or   evidence;   or   (3)   a   new

constitutional right has been recognized.” Commonwealth v. Fowler, 930

A.2d 586, 591 (Pa. Super. 2007) (citations omitted).                A PCRA petition

invoking one of these statutory exceptions must “be filed within sixty days of

the date the claim first could have been presented.” Gamboa-Taylor, 753

A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to

the time restrictions of the PCRA must be pled in the petition, and may not

be raised for the first time on appeal.         Commonwealth v. Burton, 936

A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not

raised before the lower court are waived and cannot be raised for the first

time on appeal.”).

      This Court provided the following calculations regarding the finality of

Appellant’s sentence when considering the timeliness of Appellant’s second

PCRA petition:

             [P]ursuant to Section 9545, [Appellant] was required to
         file a PCRA petition within one year of the date his

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J-A21038-15


         judgment of sentence became final. Instantly, Appellant’s
         judgment of sentence became final 60 days after [January
         22, 1988], when our Supreme Court denied allowance of
         appeal and the time allowed for filing a petition for writ of
         certiorari with the United States Supreme Court expired.
         See: 42 Pa.C.S. § 9545(b)(3); Rule 20.1, Rules of the
         United States Supreme Court (effective August 1, 1984).

Johnson, supra, unpublished memorandum at 3.
     Therefore, in order to be timely, Appellant had to file his PCRA petition

no later than March 28, 1989.     He did not file his third petition until over

twenty-three years later. Thus, it is patently untimely unless Appellant has

satisfied his burden of pleading and proving that one of the enumerated

exceptions applies. See Commonwealth v. Beasley, 741 A.2d 1258, 1261

(Pa. 1999).

     Appellant has failed to prove the applicability of any of the exceptions

to the PCRA’s time restrictions.     The PCRA court addressed Appellant’s

unsuccessful attempt to meet this burden:

            [Appellant] claimed that his trial and PCRA counsel were
         ineffective, and attempted to invoke the newly-recognized
         constitutional right exception enumerated at 42 Pa.C.S. §
         9545(b)(1)(iii). This exception requires that a petitioner
         plead and prove the existence of a constitutional right
         recognized after the expiration of the PCRA’s one-year
         time bar [].

             In support of his argument, [Appellant] relies on a
         recent U.S. Supreme Court case, Martinez v. Ryan, 132
         S.Ct. 1309 (2012). The Martinez case recognized that for
         purposes of federal habeas corpus relief, “[i]nadequate
         assistance    of  counsel   at   initial-review   collateral
         proceedings may establish cause for a prisoner’s
         procedural default of a claim of ineffective assistance of
         trial counsel.” Martinez, supra, at 1315, [Appellant’s]
         reliance on Martinez is misplaced, however, because that

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J-A21038-15


          case was applicable to federal habeas corpus claims, not
          state post-conviction proceedings. As the Pennsylvania
          Superior Court has explicitly stated: “While Martinez
          represents a significant development in federal habeas
          corpus law, it is of no moment with respect to the way
          Pennsylvania courts apply the plain language of the time
          bar set forth in section 9545(B)(1) of the PCRA.”
          Commonwealth v. Saunders, 60 A.3d 162, 165 (Pa.
          Super. 2013).

PCRA Court Opinion, 2/23/15, at 3-4.

       Our review of the record amply supports the PCRA court’s conclusion

that it lacked jurisdiction to consider Appellant’s third PCRA petition. Within

his pro se brief, while Appellant asserts in his statement of questions

involved that the PCRA’s timeliness requirements are “equivalent” to the

“default ‘Cause’ law” of Martinez, he provides no supporting argument, and

this Court in Saunders found otherwise.          Additionally, although Appellant

asserts that the PCRA court “erred when it failed to adjudicate” his claim of

governmental interference, as noted above, we previously affirmed the PCRA

court’s rejection of this claim when concluding that Appellant’s second PCRA

petition was untimely. See Johnson, supra, unpublished memorandum at

4-5.

       In sum, because the PCRA court correctly concluded that it lacked

jurisdiction to consider Appellant’s third PCRA petition, we affirm the PCRA

court’s order denying Appellant post-conviction relief.1
____________________________________________


1
  Given our disposition, Appellant’s motion to remand the matter for an
evidentiary hearing is denied.



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J-A21038-15



     Order affirmed. Motion denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/22/2015




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