Com. v. Johnson, J.

J-S46023-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. JAMES JOHNSON Appellant No. 245 MDA 2014 Appeal from the PCRA Order December 31, 2013 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0005140-2001 BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J. MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 09, 2014 James Johnson appeals from the order of the Court of Common Pleas of Berks County dismissing his third petition filed pursuant to the Post 1 We affirm based on the well-reasoned opinion of the Honorable Scott D. Keller. Judge Keller ably summarized the facts of this case as follows: Following a jury trial, [Johnson] was found guilty of one (1) count of Murder of the Second Degree, two (2) counts of Aggravated Assault, one (1) count of Recklessly Endangering Another Person, one (1) count of Robbery, one (1) count of Possessing Instrument of Crime, and related conspiracy counts on November 19, 2002. On December 9, 2002, the Court sentenced [Johnson] to life imprisonment based upon the application of the mandatory sentence found in 18 PA. CONS. STAT. § 1102(B). The [c]ourt also sentenced [Johnson] to serve ____________________________________________ 1 42 Pa.C.S. §§ 9541-9546. J-S46023-14 no less than six (6) to no more than twelve (12) months on the Possessing an Instrument of Crime count to be served concurrently with [ sentenced [Johnson] to a consecutive term of no less than five (5) to no more than ten (10) years on the Conspiracy to Commit Robbery count. [Johnson] appealed, and the Superior Court of Pennsylvania affirmed [J November 10, 2003. On November 15, 2004, [Johnson] filed his first pro se PCRA petition. The [c]ourt appointed Gail Chiodo, Esquire, on November 18, 2004 to represent [Johnson] in his PCRA proceedings. After PCRA counsel record, Attorney Chiodo filed a request to withdraw as counsel, pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). PCRA counsel advised that, in her professional judgment, [Johnson] was not eligible for relief under the PCRA. After an the [c]ourt permitted Attorney Chiodo to withdraw and issued an Order and Notice of Intent to Dismiss (herei petition on March 31, 2005. [Johnson] appealed from the affirmed the dismissal on June 5, 2006. On August 14, 2006, [Johnson] filed his second pro se PCRA petition. The [c]ourt issued its ONID on September 1, 2006, and dismissing his PCRA petitio dismissed by the Superior Court on May 16, 2007, based on his failure to file an appellate brief. PCRA Court Opinion, 3/14/14, at 3-4. On July 22, 2013, Johnson filed his third pro se PCRA petition. Following review of ONID on December 3, 2013, ultimately dismissing the petition on December 31, 2013. Johnson filed his notice of appeal on February 4, 2014. By order of the court, Johnson filed his concise statement of errors complained of on -2- J-S46023-14 appeal on February 20, 2014. The PCRA court issued its Rule 1925(a) opinion on March 14, 2014. in dismissing his petition as untimely because the exception for newly discovered facts applies. We disagree and conclude that the PCRA court In reviewing an order denying PCRA relief, our standard of review is is supported by the evidence Commonwealth v. Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012) (internal citations omitted). With respect to jurisdiction under the PCRA, this Court has stated: Pennsylvania law makes clear no court has jurisdiction to hear an untimely PCRA petition. The most recent amendments to the PCRA, effective January 16, 1996, provide a PCRA petition, including a second or subsequent petition, shall be filed within one year of the date the underlying judgment becomes final. A judgment is deemed 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. Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa. Super. 2010) (citations omitted). The PCRA court corr petition is patently untimely. See judgment of sentence became final thirty days after this Court affirmed it on -3- J-S46023-14 November 10, 2003, as he sought no further appellate review. Accordingly, the period for the filing of a PCRA petition expired on December 10, 2004. prove that the timeliness exception relating to newly discovered evidence applies. See 42 Pa.C.S. § 9545(b)(1)(ii). Rather, all of the facts contained and could have been asserted in his first PCRA petition. e -reasoned opinion thoroughly and properly disposes of the question of ineffective assistance of counsel. counsel should attach in the event of further proceedings. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 9/9/2014 -4- Circulated 08/25/2014 04:02 PM Circulated 08/25/2014 04:02 PM Circulated 08/25/2014 04:02 PM Circulated 08/25/2014 04:02 PM Circulated 08/25/2014 04:02 PM