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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
TAHIJ A. JOHNSON
Appellant : No. 193 MDA 2019
Appeal from the PCRA Order Entered January 4, 2019
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0000899-2013
BEFORE: LAZARUS, J., MURRAY, J., and STRASSBURGER*, J.
MEMORANDUM BY MURRAY, J.: FILED JULY 31, 2019
Tahij A. Johnson (Appellant) appeals from the order denying as untimely
his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546. In this appeal, Appellant's court -appointed counsel
(PCRA Appellate Counsel) filed a petition to withdraw as counsel and a no -
merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc). Because we conclude that PCRA Appellate Counsel fulfilled the
procedural requirements of Turner/Finley, and his petition is untimely, we
affirm the PCRA court's order denying Appellant's PCRA petition and grant
PCRA Appellate Counsel's petition to withdraw.
On April 9, 2014, a jury found Appellant guilty of aggravated assault,
simple assault, and resisting arrest. On May 9, 2014, the trial court sentenced
Appellant to 7 to 14 years of incarceration, followed by 2 years of probation.
* Retired Senior Judge assigned to the Superior Court.
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On May 19, 2014, Appellant filed post -sentence motions, which the trial court
denied on May 29, 2014. Appellant timely appealed to this Court.
On September 8, 2015, this Court affirmed Appellant's judgment of
sentence. See Commonwealth v. Johnson, 1334 MDA 2014 (Pa. Super.
Sept. 8, 2015) (unpublished memorandum). Approximately 19 months later,
on April 11, 2017, Appellant filed a "Petition For Leave To File Petition For
Allowance Of Appeal Nunc Pro Tunc[,]" which the Supreme Court denied on
June 22, 2017.
On September 17, 2018, Appellant filed a pro se PCRA petition. The
PCRA court appointed counsel and on December 3, 2018, Appellant's counsel
filed a motion to withdraw as counsel and a no -merit letter pursuant to
Turner/Finley. On January 4, 2019, the PCRA court held a hearing on
Appellant's PCRA petition. The same day, the PCRA court issued orders
denying Appellant's PCRA petition as untimely and granting counsel's motion
to withdraw.
On January 31, 2019, the PCRA court appointed PCRA Appellate Counsel
to represent Appellant for this appeal. The same day, Appellant filed a notice
of appeal from the order denying his PCRA petition as untimely. Both the
PCRA court and Appellant have complied with Pa.R.A.P. 1925.
On June 3, 2019 PCRA Appellate Counsel filed a petition to withdraw
with this Court, attaching a Turner/Finley no -merit brief, with notice to
Appellant that he had the right to proceed pro se or retain private counsel.
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Accordingly, we must determine if PCRA Counsel has satisfied the
requirements to be permitted to withdraw from further representation.
Pursuant to Turner/Finley, an "[i]ndependent review of the record by
competent counsel is required before withdrawal [on collateral review] is
permitted." Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009). In
Pitts, our Supreme Court explained that independent review requires proof
of:
1. A"no merit" letter by PC[R]A counsel detailing the nature and
extent of his review;
2. The "no merit" letter by PC[R]A counsel listing each issue the
petitioner wished to have reviewed;
3. The PC[R]A counsel's "explanation", in the "no merit" letter, of
why the petitioner's issues were meritless;
4. The PC[R]A court conducting its own independent review of the
record; and
5. The PC[R]A court agreeing with counsel that the petition was
meritless.
Id. (citation and brackets omitted).
Additionally:
Counsel must also send to the petitioner: (1) a copy of the "no -
merit" letter/brief; (2) a copy of counsel's petition to withdraw;
and (3) a statement advising petitioner of the right to proceed pro
se or by new counsel.
If counsel fails to satisfy the foregoing technical prerequisites of
Turner/Finley, the court will not reach the merits of the
underlying claims but, rather, will merely deny counsel's request
to withdraw. Upon doing so, the court will then take appropriate
steps, such as directing counsel to file a proper Turner/Finley
request or an advocate's brief.
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However, where counsel submits a petition and no -merit letter
that do satisfy the technical demands of Turner/Finley, the
[court] must then conduct its own review of the merits of the case.
If the court agrees with counsel that the claims are without merit,
the court will permit counsel to withdraw and deny relief.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (citations
omitted).
Here, PCRA Appellate Counsel filed a no -merit brief and petition to
withdraw that state the nature and extent of his review of the case; he listed
the issues for which Appellant sought review, explained why and how
Appellant's claims lack merit, and requested permission to withdraw. See
Turner/Finley Brief, 6/3/19; Petition to Withdraw as Counsel, 6/3/19. PCRA
Appellate Counsel also sent Appellant a copy of the no -merit brief, a copy of
the petition to withdraw, and a statement advising Appellant of the right to
proceed pro se or by privately retained counsel. Thus, the record reflects that
PCRA Counsel submitted a petition to withdraw and no -merit brief that satisfy
the technical demands of Turner/Finley. We now turn to our review of
Appellant's claims to ascertain whether he is entitled to relief.
Prior to determining the merits of Appellant's appeal, we must
determine whether we have jurisdiction to decide his claims. "Pennsylvania
law makes clear no court has jurisdiction to hear an untimely PCRA petition."
Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa. Super. 2010)
(quoting Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003)).
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A petitioner must file a PCRA petition within one year of the date on
which the petitioner's judgment became final, unless one of the three
statutory exceptions applies:
(i) the failure to raise the claim previously was the result of
interference by 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). A petitioner must file a petition invoking one of
these exceptions "within 60 days of the date the claim could have been
presented." 42 Pa.C.S.A. § 9545(b)(2).1 If a petition is untimely, and the
petitioner has not pled and proven any exception, "neither this Court nor the
trial court has jurisdiction over the petition. Without jurisdiction, we simply
do not have the legal authority to address the substantive claims.'
Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)
(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).
1 We note that Act 146 of 2018 amended 42 Pa.C.S.A. §9545(b)(2), effective
December 24, 2018, and now provides that a PCRA petition invoking a
timeliness exception must be filed within one year of the date the claim could
have been presented. This amendment has no effect on our disposition.
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In this case, the trial court sentenced Appellant on May 9, 2014. This
Court affirmed Appellant's judgment of sentence on September 8, 2015. See
Johnson, 1334 MDA 2014. Appellant had 30 days from the date of the
Superior Court's order, or October 8, 2015, to file a petition for allowance of
appeal with the Supreme Court. See Pa.R.A.P. 1113(a) ("Except as otherwise
prescribed by this rule, a petition for allowance of appeal shall be filed with
the Prothonotary of the Supreme Court within 30 days after the entry of the
order of the Superior Court . . . sought to be reviewed."). Appellant, however,
did not file a petition for allowance of appeal until April 11, 2017, well after
the 30 -day period for filing a petition for allowance of appeal. Thus,
notwithstanding his untimely filed "Petition For Leave To File Petition For
Allowance Of Appeal Nunc Pro Tunc[,]" Appellant's judgment of sentence
became final on October 8, 2015. See 42 Pa.C.S.A. § 9545(b)(3) (stating
that a judgment of sentence becomes 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"). As explained above, Appellant had one year - until
Monday, October 10, 20162 - to file a timely PCRA petition. Accordingly,
Appellant's PCRA petition, which he filed on September 17, 2018, is untimely,
2 October 8, 2016 was a Saturday. See 1 Pa.C.S.A. § 1908 ("Whenever the
last day of any such period shall fall on Saturday or Sunday, such day . . .
shall be omitted from the computation.").
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and we lack jurisdiction to decide Appellant's appeal unless he pled and proved
one of the three timeliness exceptions of section 9545(b)(1). See
Derrickson, 923 A.2d at 468.
Appellant did not attempt to plead or prove any of the timeliness
exceptions of Section 9545(b)(1) in his PCRA petition. See PCRA Petition,
9/17/18. As Appellant has failed to plead and prove an exception under
section 9545(b)(1), we are without jurisdiction to address the merits of his
appeal. See id.
For these reasons, we agree with the PCRA court and PCRA Appellate
Counsel that there are no meritorious issues that Appellant could pursue on
collateral review, and affirm the order dismissing his PCRA petition.
Order affirmed. Petition to withdraw granted.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 7/31/2019
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