Com. v. Johnson, W. ( 2019 )

J-A02044-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM A. JOHNSON :
:
Appellant : No. 693 MDA 2018
Appeal from the PCRA Order March 19, 2018
In the Court of Common Pleas of Perry County Criminal Division at
No(s): CP-50-CR-0000074-2005,
CP-50-CR-0000102-2005
BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY LAZARUS, J.: FILED MARCH 13, 2019
William A. Johnson appeals pro se from the trial court’s order dismissing
his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546.1 After review, we affirm.
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1 On January 2, 2019, our Court remanded the instant matter to the trial court
because there was an issue with regard to whether Johnson filed his notice of
appeal in a timely fashion. Upon remand, the trial court was instructed to
determine the timeliness of Johnson’s notice of appeal. We required the court
to give Johnson the opportunity to present evidence, including the original
cash slip that he appended to his rule to show cause, a post-marked envelope,
and/or an affidavit evidencing the date that he deposited his notice of appeal
with prison authorities. The trial court timely complied with our remand order
and held a hearing on February 5, 2019, where Johnson “testified and [his]
‘cash slip’ confirmed that [his] notice of appeal was deposited with prison
authorities on April 18, 2018.” Order of Court, 2/6/19, at 1. Thus, the court
found that Johnson’s notice of appeal was timely filed pursuant to the Prisoner
Mailbox Rule. Commonwealth v. Jones, 700 A.2d 423 (Pa. 1997).
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In March 2006, a jury convicted Johnson of four counts each of
attempted rape of a child, aggravated indecent assault, and indecent assault,
and two counts each of corruption of minors and indecent exposure.2 On July
31, 2006, he was sentenced to an aggregate term of ten years and nine
months’ to forty-two years’ incarceration. Johnson was deemed to be a
sexually violent predator (SVP), pursuant to 42 Pa.C.S. § 9795.4. He filed a
direct appeal challenging his designation as an SVP; however, our Court
dismissed the appeal due to appellate counsel’s failure to file a brief. Johnson
filed a pro se PCRA petition in October 2007, seeking reinstatement of his
appellate rights nunc pro tunc and the appointment of counsel. Johnson’s
rights were reinstated on March 27, 2008; however, he did not file a direct
appeal. Instead, counsel filed a timely PCRA petition requesting the court
vacate the order reinstating his appellate rights and permit him to amend his
petition. The court granted the relief and permitted counsel to file an amended
PCRA petition. After holding hearings, the court denied Johnson’s PCRA
petition on October 5, 2011. Johnson filed a collateral appeal and our Court
affirmed the denial of PCRA relief. See Commonwealth v. Johnson, No.
1937 MDA 2011 (Pa. Super. filed Sept. 18, 2012) (unpublished
memorandum). On October 29, 2013, the Pennsylvania Supreme Court
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2 Two victims were involved. Originally the charges were filed under two
separate docket numbers, CP-50-CR-0000074-2005 and CP-50-CR-0000102-
2005. However, upon motion by the Commonwealth, they were consolidated
for trial.
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denied Johnson’s petition for allowance of appeal. Commonwealth v.
Johnson, 78 A.3d 1090 (Pa. 2013) (Table).
Johnson filed another pro se PCRA petition on November 18, 2013.
Counsel was appointed and, after being granted five extensions within which
to file an amended petition, sought leave to withdraw pursuant to
Turner/Finley.3 Johnson simultaneously sought a change in appointed
counsel. The court granted counsel’s request to withdraw on May 24, 2017.4
On May 31, 2017, the court appointed new counsel for Johnson. New counsel
sought to withdraw on November 15, 2017, pursuant to Turner/Finley. On
November 20, 2017, the court granted counsel’s petition to withdraw and gave
Johnson Pa.R.Crim.P. 907 notice of its intent to dismiss his petition and
advised him of his right to respond to the proposed order within 20 days. On
December 4, 2017, Johnson filed an objection to the notice to dismiss his
petition.
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3Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
4 On May 15, 2017, Johnson filed a pro se addendum to his PCRA petition
claiming that a Commonwealth witness had a disease that “attack[ed] the
memory part of [her] brain” and that at the time of his trial this witness was
on a medication and “drinking all the time[,]” which decreased the
effectiveness of the medication and increased its adverse side-effects. See
Addendum to PCRA Petition, 5/15/17. However, because Johnson was still
represented by counsel at that time, his filing was not docketed or
independently ruled upon by the court. See Commonwealth v. Jette, 23
A.3d 1032 (Pa. 2011) (proper response to any pro se pleading by represented
defendant is to refer pleading to counsel, and take no further action on pro se
pleading unless counsel forwards motion to withdraw; once brief filed, any
right to insist upon self-representation has expired).
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On March 19, 2018, the court ruled upon Johnson’s objection, noting
that the record supported counsel’s conclusion that the claims in Johnson’s
PCRA petition are meritless and that the court had also independently
reviewed each PCRA claim and come to the same conclusion. Additionally,
the court acknowledged that Johnson had filed another PCRA brief to support
his petition that “raises new issues not raised in any of his PCRA petitions,
including arguing that his lifetime registration under SORNA is unconstitutional
and that his being found a Sexually Violent Predator is unconstitutional.”
Opinion and Order, 3/19/18, at 3-4. However, because Johnson had not
sought leave to amend his petition when counsel had filed a petition to
withdraw under Turner/Finley, the PCRA court was under no obligation to
address new issues.5
On April 23, 2018, Johnson filed his notice of appeal from the trial court’s
March 19, 2018 order denying his PCRA petition. On appeal, he raises the
following issues for our consideration:
(1) Constitutionally ineffective[] counsel for failing to bring
PCRA [c]laims that were unaddressed and asked to do.
(2) Sufficiency of the evidence.
(3) Whether [the t]rial court erred in finding [Johnson] to be a
sexually violent predator even though the Sex Offender
Assessment Board did not so find.
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5 See Commonwealth v. Rigg, 84 A.3d 1080 (Pa. Super. 2014); see also
Commonwealth v. Rykard, 55 A.3d 1177 (Pa. Super. 2012) (response to
Rule 907 notice of dismissal not treated as either amended PCRA petition or
serial petition).
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(4) SORNA [r]egistration [requirements] and Megan’s Law are
unconstitutional.
(5) Did the [t]rial judge abuse his discretion by going against
the SOAB at sentencing?
Appellant’s Brief, at 7.
Generally, a petition for PCRA relief, including a second or subsequent
petition, must be filed within one year of the date the judgment of sentence
is final. See 42 Pa.C.S.A. § 9545(b)(3); see also Commonwealth v.
Alcorn, 703 A.2d 1054 (Pa. Super. 1997). There are, however, exceptions to
the time requirement, set forth at 42 Pa.C.S.A. § 9545(b)(1)(i),(ii), and (iii).
Where the petition alleges, and the petitioner proves, that an exception to the
time for filing the petition is met, the petition will be considered timely. These
exceptions include interference by government officials in the presentation of
the claim, newly-discovered facts or evidence, and a newly-recognized
constitutional right. See Commonwealth v. Gamboa-Taylor, 753 A.2d
780, 783 (Pa. 2000). A PCRA petition invoking one of these exceptions must
“be filed within 60 days of the date the claims could have been presented.”
Id.; see also 42 Pa.C.S.A. § 9545(b)(2).6 The timeliness requirements of the
PCRA are jurisdictional in nature and, accordingly, a PCRA court cannot hear
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6 Section 9545(b)(2) was amended on October 24, 2018, effective in 60 days
(Dec. 24, 2018), extending the time for filing from sixty days of the date the
claim could have been presented, to one year. The amendment applies to
claims arising on December 24, 2017, or thereafter. See Act 2018, Oct. 24,
P.L. 894, No. 146, § 3.
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untimely petitions. Commonwealth v. Robinson, 837 A.2d 1157 (Pa.
2003).
Instantly, Johnson’s judgment of sentence became final on April 27,
2008, when the time expired for him to file a nunc pro tunc direct appeal with
our Court. See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903. Thus, he had until
April 27, 2009, to file a timely petition. Johnson’s current petition, however,
was not filed until November 18, 2013, more than four years later.
Accordingly, Johnson’s PCRA is patently untimely and he must plead and prove
a timeliness exception in order for the court to consider its merits.
Johnson fails to plead, let alone prove, any exception to the timeliness
requirements of the PCRA. Thus, we discern no error in the PCRA court’s
decision to deny his petition. Commonwealth v. Murray, 753 A.2d 201 (Pa.
2000 (timeliness of PCRA petition is jurisdictional threshold that may not be
disregarded in order to reach merits of claims raised in untimely petition).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/13/2019
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