J-S02026-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY BERNARDLY JONES, :
:
Appellant. : No. 1518 EDA 2018
Appeal from the PCRA Order, April 3, 2018,
in the Court of Common Pleas of Northampton County,
Criminal Division at No(s): CP-48-CR-0003796-2002.
BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY KUNSELMAN, J.: FILED APRIL 03, 2019
Anthony Bernardly Jones appeals pro se from the order denying as
untimely his serial petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The pertinent facts and procedural history are as follows: On March 9,
2004, a jury convicted Jones of resisting arrest, recklessly endangering
another person, and two firearm violations. On April 21, 2004, the trial court
sentenced him to an aggregate term of 78 to 223 months of imprisonment.
On March 16, 2005, this Court affirmed his judgment of sentence, and, on
November 2, 2005, our Supreme Court denied Jones’ petition for allowance of
appeal. Commonwealth v. Jones, 876 A.2d 464 (Pa. Super. 2005)
(unpublished memorandum), appeal denied, 887 A.2d 1240 (Pa. 2005).
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On March 13, 2006, Jones filed his first pro se PCRA petition, and the
PCRA court appointed counsel. The PCRA court denied relief, and, after two
remands, this Court confirmed the order denying post-conviction relief. See
Commonwealth v. Jones, 2 A.3d 650 (Pa. Super. 2010). Jones did not seek
further review.
Jones unsuccessfully sought post-conviction relief in 2015 and 2016. On
each occasion, the PCRA court correctly concluded that the Jones’ serial
petition was untimely, and that he failed to plead and prove a time-bar
exception.
On August 4, 2017, Jones filed a pro se motion for appointment of
counsel and a “NUNC PRO TUNC MOTION FOR PSYCHIATRIC
/PSYCHOLOGICAL EXAMINATION OF [JONES] TO INQUIRE INTO HIS SANITY
AT THE TIME OF THE OFFENSE; COMPETENCE TO STAND TRIAL; AND
COMPETENCE TO WAIVE COUNSEL.” On December 18, 2017, Jones filed a
pro se “SUCCESSIVE PETITION FOR POST CONVICTION RELIEF.” On
December 27, 2017, the PCRA court issued Pa.R.Crim.P. 907 notice of its
intention to dismiss Jones’ PCRA successive petition without a hearing.
On January 8, 2018, Jones filed “[JONES’] REQUEST TO RESERVE RIGHT
TO FILE NOTICE OF APPEAL UNTIL THE DISPOSITION OF NUNC PRO TUNC
MOTION FOR PSYCHIATRIC EXAMINATION.” By order entered February 13,
2018, the PCRA court denied this petition. In the same order, the PCRA court
noted that Jones was not entitled to the appointment of counsel for his fourth
PCRA petition, and that his request for a psychiatric/psychological evaluation
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was waived because it was not timely asserted or previously raised in any of
his prior PCRA petitions. In addition, the PCRA court found Jones’ claim
regarding the waiver of counsel was previously litigated. Jones did not file an
additional response. By order entered April 3, 2018, the PCRA court dismissed
the petition as untimely. This appeal follows. Both Jones and the PCRA court
have complied with Pa.R.A.P. 1925.
Before addressing the issue Jones raises on appeal, we must first
determine whether the PCRA court correctly determined that his current PCRA
petition was untimely filed. This Court’s standard of review regarding an order
dismissing a petition under the PCRA is to ascertain whether “the
determination of the PCRA court is supported by the evidence of record and is
free of legal error. The PCRA court’s findings will not be disturbed unless there
is no support for the findings in the certified record.” Commonwealth v.
Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013) (citations omitted).
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
is final unless the petition alleges, and the petitioner proves, that an exception
to the time for filing the petition, set forth at 42 Pa.C.S.A. sections
9545(b)(1)(i), (ii), and (iii), is met.1 A PCRA petition invoking one of these
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1 The exceptions to the timeliness requirement are:
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statutory exceptions must “be filed within 60 days of the date the claims could
have been presented.” See Commonwealth v. Hernandez, 79 A.3d 649,
651-52 (Pa. Super. 2013) (citations omitted); see also 42 Pa.C.S.A. §
9545(b)(2).2 Asserted exceptions to the time restrictions for a PCRA petition
must be included in the petition, and may not be raised for the first time on
appeal. Commonwealth v. Furgess, 149 A.3d 90 (Pa. Super. 2016).
Here, because Jones did not file a petition for writ of certiorari following
our Supreme Court’s denial of his petition for allowance of appeal on
November 2, 2005, his judgment of sentence became final ninety days
thereafter, or on January 31, 2006. See 42 Pa.C.S.A. § 9545(b)(3);
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(i) the failure to raise the claim previously was the result of
interference of 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.
(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.
42 Pa.C.S.A. §§ 9545(b)(1)(i), (ii), and (iii).
2Section 9545(b)(2) has since been amended to enlarge this period from sixty
days to one year. See Act of 2018, October 24, P.L. 894, No. 146, §§ 2 and
3. The sixty-day time period applies in this appeal.
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U.S.Sup.Ct. Rule 13. Thus, for purposes of the PCRA’s time bar, Jones had to
file his first PCRA petition by January 31, 2007. Jones filed his latest PCRA
petition on December 18, 2017. Thus, the petition is patently untimely, unless
Jones satisfied his burden of pleading and proving that one of the enumerated
exceptions applies. See Hernandez, supra.
Jones has failed to prove any exception to the PCRA’s time bar. Indeed,
in his pro se brief, he does not even acknowledge the PCRA’s time restrictions
or the exceptions thereto.3 Therefore, the PCRA court correctly determined
that it lacked jurisdiction to consider the merits of the Jones’ petition. We
therefore affirm its order denying post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/3/19
____________________________________________
3 The only reference Jones makes as to the timeliness of his serial PCRA
petition is the bare assertion that he is not “time-barred from requesting a
nunc pro tunc/retrospective psychiatric/psychological examination as a
prerequisite to collaterally attack his conviction and sentence[.]” See Jones’
Brief at 4.
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