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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JERMAINE K. CLARK
Appellant No. 3094 EDA 2013
Appeal from the PCRA Order October 21, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011902-2008
BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 25, 2014
Jermaine K. Clark appeals pro se
his petition, filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541-9546, as untimely. After careful review, we affirm.
In September 2009, Clark entered a negotiated plea to aggravated
assault and conspiracy. In return for his plea, the Commonwealth agreed to
nol pros the remaining charges and recommended concurrent sentences of
2½-10 years in prison. On December 16, 2009, the trial court sentenced
Clark to the negotiated term of 2½-
appeal was filed. On June 15, 2012, Clark filed the instant pro se PCRA
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*
Retired Senior Judge assigned to the Superior Court.
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petition. Counsel was appointed, who submitted a Turner/Finley1 brief
petition was untimely and no exceptions to the PCRA timing requirements
were met. On September 4, 2013, the trial court sent Clark a Pa.R.Crim.P.
907 notice of its intent to dismiss his petition as untimely. Clark filed a pro
se
appeal followed.
On appeal, Clark contends that the PCRA court abused its discretion by
arbitrarily dismissing his petition as untimely where the record demonstrates
that he was entitled to an exception under 42 Pa.C.S.A. § 9545(b)(1)(ii). 2
Generally, a petition for PCRA relief, including a second or subsequent
petition, must be filed within one year of the date the judgment is final. See
42 Pa.C.S. § 9545(b)(3); see also Commonwealth v. Alcorn, 703 A.2d
1054 (Pa. Super. 1997). There are, however, exceptions to the timeliness
requirement, set forth at 42 Pa.C.S. § 9545(b)(1)(i),(ii), and (iii). Where
the petition alleges, and the petitioner proves, that an exception to the time
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1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988).
2
The standard of review of an order denying a PCRA petition is whether that
determination is supported by the evidence of record and is free of legal
support for the findings in the certified record. Commonwealth v.
Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012).
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for filing the petition is met, the petition will be considered timely. Id. The
timeliness requirements of the PCRA are jurisdictional in nature and,
accordingly, a PCRA court cannot hear untimely petitions. Commonwealth
v. Robinson, 837 A.2d 1157 (Pa. 2003).
n
January 16, 2010, thirty days after he was sentenced and the time expired
to file a direct appeal to this Court. See
therefore, had to be filed by January 16, 2011, to be considered timely
under the PCRA. Because Cl
after that date, it is facially untimely.
section 9545(b)(1)(ii). This exception requires a petitioner to demonstrate
that he did not know of the facts upon which he based his petition and could
not have learned them earlier by the exercise of due diligence.
Commonwealth v. Monaco, 996. A.2d 1076 (Pa. Super. 2010). Moreover,
t be filed
within 60 days of the date the claim could first have been presented and the
petitioner must plead and prove specific facts that demonstrate his claim
was raised within that 60-day time frame. See 42 Pa.C.S. § 9545(b)(2).
In his brief, Clark c
evidence via first class mail on April 10, 2012, and later filed his petition on
1. Specifically, Clark contends that on April 10, 2012, he received a copy of
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deny his application for parole. In that notice it is indicated that the district
attorney advised the parole board not to release Clark. Accordingly, Clark
negotiated plea agreement, which included an agreed upon minimum term
of incarceration.
minimum term of his negotiated sentence, 2½ years in prison. Therefore,
as a reason for denying parole, it is merely one of four reasons stated. The
other reasons include: prior unsatisfactory parole supervision history;
minimization/denial of the nature and circumstances of offenses committed;
and lack of remorse for offenses committed. Therefore, while the D.A. may
have advocated against paroling Clark, it was not the singular reason for his
plea agreement precluding the D.A. from taking a negative position on
3
Accordingly, we fail to find that Clark has proven
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3
Even if
under the PCRA timing exception, Clark did not comply with section
9545(b)(2) by filing his petition within 60 days of the date that he could
have obtained it. Clark incorrectly measures the 60 days from the date that
(Footnote Continued Next Page)
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supported by the evidence of record and is free of legal error. Johnston,
supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/25/2014
_______________________
(Footnote Continued)
See
Commonwealth v. Porter, 35 A.3d 4 (Pa. 2012) (PCRA time bar not
measured from when petitioner obtained information, but from when it could
have been obtained). However, he offers no explanation as to why, with the
decision on the day it was rendered (February 16, 2012).
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