J-S61013-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
JAMES R. JONES,
Appellant No. 3881 EDA 2017
Appeal from the PCRA Order Entered January 12, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0205431-2002
BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 27, 2018
Appellant, James R. Jones, appeals pro se from the post-conviction
court’s January 12, 2018 order dismissing, as untimely, his fourth petition
filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.1
We affirm.
At the outset, we note that the arguments presented in Appellant’s pro
se brief are confusing, at best. His “Statement of the Question Involved” is
____________________________________________
1 On November 20, 2017, Appellant filed a notice of appeal from the PCRA
court’s November 6, 2017 order notifying Appellant of its intent to dismiss his
petition pursuant to Pa.R.Crim.P. 907. On January 12, 2018, the court issued
the final order dismissing Appellant’s petition. We will regard Appellant’s
premature notice of appeal as timely. See Pa.R.A.P. 905(a)(5) (“A notice of
appeal filed after the announcement of a determination but before the entry
of an appealable order shall be treated as filed after such entry and on the
day thereof.”); see also Commonwealth v. Swartzfager, 59 A.3d 616, 618
n.3 (Pa. Super. 2012) (accepting a premature notice of appeal filed after the
entry of the Rule 907 order and before the final order dismissing the petition).
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demonstrative of this point: “Was the verdict at trial based on false documents
by the government agencies, [a] claim under 42 Pa.C.S.[] § 9545 and § 9541
PCRA petition, also a violation of the Constitution of this Commonwealth.”
Appellant’s Brief at 6. It appears, however, that Appellant is contending that
his untimely-filed PCRA petition satisfies the after-discovered-fact exception
of 42 Pa.C.S. § 9545(b)(1)(ii), based on his discovering that his pre-sentence
investigation report (PSI) contained inaccurate information. Appellant also
seemingly avers that the government interfered with his ability to raise this
claim by withholding his PSI from him.
We have reviewed the certified record, the briefs of the parties, and the
applicable law. Additionally, we have considered the opinion of the Honorable
Amanda Cooperman of the Court of Common Pleas of Philadelphia County.
We conclude that Judge Cooperman’s well-reasoned opinion accurately
disposes of the issues presented by Appellant. Accordingly, we adopt her
opinion as our own and affirm the order denying Appellant’s petition for the
reasons set forth therein.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/27/18
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Circulated 11/02/2018 02:54 PM
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James Jones Criminal Division
OPINION OF THE COURT
COOPERMAN, J March 20, 2018
PROCEDURAL HISTORY
Following a non-jury trial on July 26, 2002, Defendant was convicted ofrobbery, burglary,
theft, receiving stolen property, criminal mischief, criminal trespass, simple assault, and recklessly
endangering another person for the January 10, 2002 burglary of Joel Beamon's residence in
Philadelphia. On December 17, 2002, this Court determined that Defendant's robbery and burglary
convictions required the imposition of mandatory minimum sentences for recidivists pursuant to 42
Pa.C.S.A. §9714(a)(2) (sentences for second and subsequent offenses), and imposed two concurrent
terms of twenty-five to fifty years' imprisonment for robbery and burglary. No further penalties were
imposed on the remaining convictions. The Superior Court affirmed Defendant's judgment of
sentence. See, Commonwealth v. Jones, 844 A.2d 1282 (Pa. Super. 2003) (unpublished
memorandum). And the Pennsylvania Supreme Court denied further review. See Commonwealth v.
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Jones, 853 A.2d 360 (Pa. 2004).
Defendant subsequently filed a timely PCRA Petition, which this Court denied. On appeal,
the Superior Court vacated Defendant's sentence as illegal under Commonwealth v. McClintic, 909
A.2d 1241 (Pa. 2006). Specifically, the Superior Court held that because Defendant is burglary and
robbery convictions arose from of the same criminal transaction, a sentence enhancement was proper
for one, but not for both, crimes of violence. At a new sentencing hearing in October 2007, where
Defendant was present, this Court re-sentenced Defendant to a mandatory term of imprisonment for
the robbery conviction only, and imposed a concurrent sentence of nine to eighteen years of
incarceration for burglary. The Superior Court affirmed Defendant's judgment of sentence, see
Commonwealth v. Jones, 974 A.2d 1184 (Pa. Super. 2009)"(unpublished memorandum), and the
Pennsylvania Supreme Court denied further review. See Commonwealth v. Jones, 980 A.2d 606 (Pa.
2009).
Since then, Defendant has ft led prose PCRA petitions that th_is Court has denied as untimely,
not subject to an exception, and the Superior Court has subsequently affirmed, See Commonwealth
v. Jones, 24 AJd 444 (Pa. Super. 20 l O); see also, Commonwealth v. Jones, 81 AJd 100 l (Pa. Super.
2013); Commonwealth v. .Jones, 2017 WL 219092 (Pa. Super. Jan. 19, 2017). Defendant filed
another pro se Petition for post-conviction relief on August 24, 2017 i which is the subject of the
instant appeal. Defendant also filed a prose amendment to his petition on September 5, 2017. After
reviewing Defendant's Petition, this Court determined that the allegations in the petition, as
amended, were untimely filed and not subject to an exception. However, on November 20, 2017,
before a final order dismissing Defendant's petition was entered, Defendant filed the instant appeal.
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This Court subsequently entered a final order dismissing Defendant's petition, as amended, on
January 12, 2018.
ANALYSIS:
Defendant alleges he recently discovered errors in a pre-sentencing investigation (PSI) report
relied on during Defendant's initial sentencing hearing, including that he had family living in
Philadelphia and never served in the military. However, this Court lacks jurisdiction to review the
merits of Defendant's petition, as amended, because Defendant's petition was untimely filed, an� not
subject to an exception.
The Superior Cou11 has previously determined:
It is well-established that the PCRA's timeliness requirements are
jurisdictional in nature and must be strictly construed; courts may not address
the merits of the issues raised in a petition if it is not timely filed. Generally,
a PCRA petition must be filed within one year of the date the judgment of
sentence becomes final unless the petitioner meets his burden to plead and
prove one of the exceptions enumerated in 42 Pa.C.S.A. §9545(b)(l)(i)-(iii),
which include: (1) the petitioner's inability to raise a claim as a result of
governmental interference; (2) the discovery of previously unknown facts or
evidence that would have supported a claim; or (3) a newly recognized
constitutional right. 42 Pa.C.S.A. §9545(b)(l)(i)-(iii). However, the PCRA
limits the reach of the exceptions by providing that a petition invoking any of
the exceptions must be filed within 60 days of the date the claim first could
have been presented.
Commonwealth v. Waters, l 35 A.3d 589, 591-592 (Pa. Super.2016) (most citations omitted).
In this case, Defendant's judgment of sentence became final on September 27, 2004; the time
to have sought certiori with the United States Supreme Court had expired. See, 42 Pa.C.S.A.
§9545(b)(3); U.S. SupremeCourt Rule l 3(a). As Defendant filed his Petition on August 24, 2017,
more than a decade after his sentence became final, his petition is facially untimely.
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Defendant claims two exceptions to the PCRA's jurisdictional timeliness requirement. First,
Defendant alleges interference by government officials. Specifically, Defendant alleges that he
attempted to obtain a copy of the PSI report from the Criminal Justice Center in Philadelphia, and
had his request denied because the documents belonged to Judge Jackson. A defendant who seeks a
postconviction review of an untimely petition based on claims of government interference has 60
days after the discovery of the information to file his or her petition and must plead and prove that
the information could not have been discovered earlier with the exercise of due diligence.
Commonwealth v. Sattazahn, 869 A.2d 529 (Pa. Super. 2005). Defendant's allegations fail to
demonstrate interference by a government actor in violation the laws or constitution of either this
Commonwealth or the United States. Defendant pleads no facts to show that he filed a motion
seeking a copy of his PSI report from any court and provides no additional or collaborative support
to his claim that he pursued this information diligently. Further, Defendant does not explain why he
could not have challenged his lack of access to this information earlier or why he did not seek
alternate means of attempting to obtain this information. That Defendant only recently came across
this information does not excuse his failure to try to obtain this information at the time of his
sentencing or in the more than a decade that has since passed. Accordingly, Defendant failed to
plead and prove the governmental interference exception.
Defendant also relies on the "unknown facts" exception. Defendant alleges that on July 27,
2017, he was presented with a copy of the false PSI report by a prison counselor1. To raise a
successful newly discovered fact claim, a petitioner must show that: (I) "the facts upon which the
l Although Defendant's petition alleges he received the information from the prison counselor on July 19, 2017, the
amended petition alleges he received the information on July 27, 2017.
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claim was predicated were unknown" and (2) the facts "could not have been ascertained by the
exercise of due diligence." 42 Pa.C.S.A. §9545(b)(l)(ii). Due diligence requires that a defendant
take such steps as to protect his own interests. Commonwealth v. Carr, 768 A.2d 1164 (Pa. Super.
2011 ). This Court does not believe the facts as alleged establish the exercise of due diligence on
Defendant's part to protect his own interests. Defendant's allegations that he (1) only recently
received a copy of his PSI report from a prison counselor, which Defendant could have reviewed
prior to either sentencing hearing in this case, and (2) made a single attempt to obtain a copy of his
PSI report do not suggest that the Defendant diligently pursued the documents related to his case
within the timeframe required for the timely filing of a PCRA petition. Therefore, this Court is
without jurisdiction to consider Defendant's claim for relief. Commonwealth v. Robinson, 837 A.2d
1157, 1161 (Pa. 2003).
WHEREFORE, for the abovementioned reasons, this Court respectfully requests the dismissal of
Defendant's Appeal from his PCRA petition and the affirmance of the Judgment of Sentence in this
matter.
�
BY THE COURT:
c �AMANDA �PERMAN, J.
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