J-S67011-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                 : IN THE SUPERIOR COURT OF
                                              :      PENNSYLVANIA
                     Appellee                 :
                                              :
             v.                               :
                                              :
RICKY ALONZO JOHNSON,                         :
                                              :
                     Appellant                : No. 169 WDA 2014

                  Appeal from the PCRA Order December 4, 2013,
                     Court of Common Pleas, Allegheny County,
                  Criminal Division at No. CP-02-CR-0011960-2004

BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.

MEMORANDUM BY DONOHUE, J.:                         FILED NOVEMBER 12, 2014

      Ricky Alonzo Johnson (“Johnson”) appeals from the order of court

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

(“PCRA”), 42 Pa.C.S.A. §§ 9541 – 9546. We affirm.

      In December 2006, Johnson was convicted of criminal attempt,

aggravated    assault     and    recklessly   endangering   another   person   and

subsequently sentenced to 17½ to 35 years of imprisonment.             This Court

affirmed his judgment of sentence of February 2, 2009, and Johnson did not

seek further review. On June 17, 2010, Johnson filed his first PCRA petition.

Although counsel was appointed to represent Johnson, counsel filed a

Turner/Finley petition averring that there was no merit to the issues

Johnson sought to raise and seeking to withdraw. The PCRA court granted

counsel’s petition and ultimately dismissed Johnson’s PCRA petition.           This




*Former Justice specially assigned to the Superior Court.
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Court affirmed the dismissal of Johnson’s first PCRA petition, and the

Pennsylvania Supreme Court denied Johnson’s petition for allowance of

appeal.

       On July 8, 2013, Johnson filed his second PCRA petition, which is at

issue in this appeal.1 The trial court entered its notice of intent to dismiss

pursuant to Pa.R.Crim.P. 907 indicating that Johnson’s petition was untimely

and not subject to any exception to the PCRA’s timeliness requirements.

Johnson filed a response to the Rule 907 notice, but the PCRA court

dismissed his petition on December 4, 2013. This timely appeal followed.

       On appeal, Johnson raises two claims of ineffective assistance of trial

counsel. Appellant’s Brief at V. Before we address them, however, we must

consider whether Johnson’s PCRA petition was timely because “[t]he PCRA’s

timeliness requirements are jurisdictional in nature, and a court may not

address the merits of the issues raised if the PCRA petition was not timely

filed.” Commonwealth v. Copenhefer, 941 A.2d 646, 648-49 (Pa. 2007).

       The PCRA provides in relevant part as follows:

             (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


1
    Johnson filed this petition pro se and is acting pro se on appeal.


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                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.

            (2) Any petition invoking an exception provided in
            paragraph (1) shall be filed within 60 days of the
            date the claim could have been presented.

42 Pa.C.S.A. § 9545(b).

      Johnson’s judgment of sentence became final on March 4, 2009, the

last day of the period in which he could have sought review of this Court’s

determination    with     the     Supreme      Court   of   Pennsylvania.       See

Commonwealth v. Rojas, 874 A.2d 638, 643 (Pa. Super. 2005).                         As

Johnson did not file his second PCRA petition until July 8, 2013, it is patently

untimely and jurisdictionally time-barred unless Johnson proves one of the §

9545(b)(1) exceptions.

      Johnson    argues    that    the   timeliness    exceptions   codified   at   §

9545(b)(1)(i) and (ii) apply.        With regard to § 9545(b)(1)(i), Johnson

contends that the ineffectiveness of his trial counsel was evident at trial, and

the prosecutor, as a government official “interfered” when he did not move



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for a mistrial on Johnson’s behalf. Appellant’s Brief at 20. However, for the

exception set forth in § 9545(b)(i) to apply, the petitioner must prove that

“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.” 42 Pa.C.S.A. § 9545(b)(1)(i). Johnson does not allege that

government officials interfered with his ability to raise this claim previously;

rather, he contends only that the government interfered with his due

process rights by not acting on his behalf at trial. Accordingly, he has failed

to prove that this timeliness exception applies.

      Next, Johnson argues that the “after-discovered evidence” exception

found in § 9545(b)(1)(ii) applies because on May 8, 2013, he became aware

that his appellate counsel was disbarred in March 2009, shortly after his

direct appeal was decided.     He further contends that he filed his petition

within 60 days of discovering this fact, thereby satisfying § 9545(b)(2).2

Johnson is mistaken. Proof of appellate counsel’s disbarment was available

to the public on March 29, 2009; accordingly, the 60 days for purposes of

§ 9545(b)(2) began to run on that date.             See Commonwealth v.

Feliciano, 69    A.3d 1270 (Pa. Super. 2013) (providing that where



2
  In support of his claim, Johnson attached to his PCRA petition an order
from the Office of Disciplinary Counsel providing that Arthur L. Bloom,
Johnson’s counsel for direct appeal, was disbarred on March 23, 2009. See
PCRA Petition, 7/8/13, at Exhibit A-1.


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information regarding the suspension of counsel’s professional license was in

the public record for more than 60 days prior to filing of PCRA petition, the

petition is time-barred regardless of when petitioner allegedly became aware

of the information). Johnson did not file this PCRA petition until more than

four years after the fact of appellate counsel’s disbarment became public;

therefore, he has failed to fulfill the requirements of § 9545(b)(2) with

regard to this claim.

      Having found that Johnson’s PCRA petition is untimely and therefore

jurisdictionally time-barred, we affirm the PCRA court’s order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/12/2014




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