J-S09014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                        :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA,                          :        PENNSYLVANIA
                                        :
                    Appellee            :
                                        :
              v.                        :
                                        :
 RODNEY JERMAINE JOHNSON,               :
                                        :        No. 1963 MDA 2016
                    Appellant           :

               Appeal from the PCRA Order November 21, 2016
                 in the Court of Common Pleas of York County
              Criminal Division at No.: CP-67-CR-0006484-2008


BEFORE:    GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                            FILED MARCH 16, 2018

      Appellant, Rodney Jermaine Johnson, appeals pro se from the order

dismissing his serial petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

      The PCRA court set forth the facts and procedural history of this case as

follows:

            On May 13, 2009[,] a jury found Appellant guilty of two
      counts of forcible rape, two counts of forcible involuntary deviate
      sexual intercourse, aggravated assault, aggravated indecent
      assault without consent, and simple assault. On August 26,
      2009[,] Appellant was sentenced to 28-to-56 years. . . . After
      the Pennsylvania Superior Court affirmed this court’s order, the
      Pennsylvania Supreme Court denied Appellant’s petition for
      allowance of appeal on March [1], 2011. [(See Commonwealth
      v. Johnson, 13 A.3d 991 (Pa. Super. 2010), appeal denied, 17
      A.3d 1252 (Pa. 2011) (unpublished memorandum).]

            On March 21, 2011[,] Appellant filed a pro se PCRA petition.
      This court appointed Attorney Korey Leslie to represent him,

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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     granted his request for in forma pauperis status and held the PCRA
     hearing on October 7, 2011. During the hearing, this court heard
     testimony from Attorney Marc Semke and from Appellant. After
     a thorough review of the testimony and the record, we determined
     that [his] petition is without merit and we denied his first PCRA
     petition on October 7, 2011. Appellant appealed the decision to
     the Superior Court but his appeal was quashed by the Superior
     Court on March 27, 2012[,] for failure to file a brief that complied
     with Pa.R.A.P. 2111.

            On October 24, 2012[,] Appellant filed a motion for a new
     trial on the basis of after-discovered evidence; however, Appellant
     failed to describe such evidence or to provide any information as
     to how and where such evidence could be obtained. Appellant’s
     motion was denied on October 31, 2012 as untimely[.] . . . The
     petition was treated as a second PCRA petition.

           On November 13, 2013[,] Appellant filed a petition
     requesting a new trial on the basis of after-discovered evidence
     that was treated as a third PCRA petition. Appellant again failed
     to describe the nature or character of the evidence, and it appears
     he simply re-typed and re-submitted his October 24, 2012 motion
     for a new trial, which this court had already denied as untimely.
     Appellant appealed the decision to the Superior Court and the
     Superior Court affirmed the decision in its opinion filed on
     September 25, 2014.

            On September 18, 2014[,] Appellant filed a fourth PCRA
     petition citing withheld evidence and an illegal sentence pursuant
     to Alleyne v. United States, 133 S.Ct. 2151 (2013). The
     Commonwealth filed a response on November 6, 2014. The
     petition was found to lack merit and was denied by order dated
     November 14, 2014.

            Appellant filed his fifth PCRA petition on March [19], 2015,
     again citing withheld evidence and an illegal sentence. The PCRA
     court denied [his] fifth PCRA petition for untimeliness and lack of
     merit on March 30, 2015. Appellant filed a notice of appeal to the
     Superior Court on April 14, 2015. The Superior Court affirmed
     this court’s decision on February 10, 2016. Appellant filed a
     petition for allowance of appeal to the Supreme Court on February
     18, 2016. The Supreme Court denied the petition for allowance
     of appeal on June 2, 2016.


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              Appellant filed yet another petition for new trial and new
       judge citing bias, withheld evidence and an illegal sentence on
       November 14, 2016. The petition was Appellant’s sixth PCRA
       petition[1] and identical in format and substance as his fifth PCRA
       petition. After review, the petition was denied by order dated
       November 21, 2016. This instant [timely] appeal followed.

(PCRA Court Opinion, 10/25/17, at 1-3) (record citations and some

capitalization omitted).2

       Appellant raises the following issues for our review:

       1. Was the sentence of imprisonment by the court, was [sic]
       excessive against the weight of the evidence to charge an convict
       [sic] [A]ppellant?

       2. Did courts failed [sic] to articulate sufficient reasons for his
       deviation from the guidelines, and use bias statements towards
       [A]ppellant?

       3. Did sentence court abused [sic] its discretion in sentencing
       [A]ppellant above the aggravated range to the maximum
       sentence to be consecutive?

       4. Was [A]ppellant Constitutional rights violated to be excluded
       [sic], un-informed of exculpatory information (i.e., to receive a
       copy of the (DNA) results) known to the [C]ommonwealth
       prosecutor before trial jury [sic][?]

    (Appellant’s Brief, at 4).

____________________________________________


1 We note that the PCRA court properly treated Appellant’s filing, styled as a
“Petition of Appellate Review of Sentence[,]” as a PCRA petition. (PCRA
Petition, 11/14/16, at 1) (most capitalization omitted). See Commonwealth
v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011), appeal denied, 47 A.3d 845
(Pa. 2012) (“We have repeatedly held that . . . any petition filed after the
judgment of sentence becomes final will be treated as a PCRA petition.”)
(citation omitted).

2 Appellant filed a concise statement of errors complained of on appeal in
advance of the PCRA court’s directive to do so. The court entered an opinion
on October 25, 2017. See Pa.R.A.P. 1925.

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          Our standard of review of an order denying PCRA relief is
     whether the record supports the PCRA court’s determination, and
     whether the PCRA court’s determination is free of legal error. The
     PCRA court’s findings will not be disturbed unless there is no
     support for the findings in the certified record.

Commonwealth v. Brown, 143 A.3d 418, 420 (Pa. Super. 2016) (citations

omitted).

     We begin by addressing the timeliness of Appellant’s petition.

            . . . [A] PCRA petition, including a second or subsequent
     petition, must be filed within one year of the date that judgment
     becomes final. A judgment becomes final for purposes of the
     PCRA 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.

            It is well-settled that the PCRA’s time restrictions are
     jurisdictional in nature. As such, this statutory time-bar implicates
     the court’s very power to adjudicate a controversy and prohibits
     a court from extending filing periods except as the statute
     permits. Accordingly, 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 by operation of one of
     the statutorily enumerated exceptions to the PCRA time-bar.

            The exceptions to the PCRA time-bar are found in Section
     9545(b)(1)(i)–(iii) (relating to governmental interference, newly
     discovered facts, and newly recognized constitutional rights), and
     it is the petitioner’s burden to allege and prove that one of the
     timeliness exceptions applies. Whether a petitioner has carried
     his burden is a threshold inquiry that must be resolved prior to
     considering the merits of any claim. . . .

Commonwealth v. Robinson, 139 A.3d 178, 185-86 (Pa. 2016) (quotation

marks and some citations omitted).

     In the instant case, Appellant’s judgment of sentence became final on

May 30, 2011, ninety days after our Supreme Court denied allowance of


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appeal.   See U.S. Sup.Ct. R. 13; 42 Pa.C.S.A. § 9545(b)(3).           Therefore,

Appellant had until May 30, 2012, to file a timely PCRA petition.         See 42

Pa.C.S.A. § 9545(b)(1).      Because Appellant filed the instant petition on

November 14, 2016, it is untimely on its face, and the PCRA court lacked

jurisdiction to review it unless he pleaded and proved one of the statutory

exceptions to the time-bar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      Section 9545 of the PCRA provides only three limited exceptions that

allow for review of an untimely PCRA petition:

             (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.

      Any petition invoking an exception must “be filed within 60 days of the

date the claim could have been presented.” Id. at § 9545(b)(2).

      Here, in the argument section of his brief, comprised of a single cursory

paragraph, Appellant does not acknowledge the untimeliness of his petition,

or allege the applicability of any exception to the PCRA’s time-bar.           (See

Appellant’s Brief, at 7). Appellant instead focuses on a claim that he already



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unsuccessfully litigated on direct appeal.     (See id. (challenging the

discretionary aspects of his sentence); see also Commonwealth v.

Johnson, 1798 MDA 2009, at *3, 6-10 (unpublished memorandum)).

Because Appellant did not allege and prove any exception to the time-bar, we

conclude that he has failed to meet his burden under the PCRA, and the PCRA

court and this Court lack jurisdiction to review the merits of his untimely

petition. See Robinson, supra at 185-86. Accordingly, we affirm the order

of the PCRA court.

     Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/16/2018




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