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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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1
42 Pa.C.S. §§ 9541-9546.
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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
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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
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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
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