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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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: JANUARY 2, 2019
William A. Johnson appeals from the trial court’s March 19, 2018, order
finding his Pa.R.Crim.P. 907 objections meritless and dismissing his petition
filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-
9546. After review, we remand with instructions.
In March 2006, a jury convicted Johnson1 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. 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
____________________________________________
1 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.
J-A02044-19
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; 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 filed Sept. 18, 2012) (unpublished memorandum).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 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.2 Johnson simultaneously sought a change in appointed
____________________________________________
2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
-2-
J-A02044-19
counsel. The court granted counsel’s request to withdraw on May 24, 2017.3
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.
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 came 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,
____________________________________________
3 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 and
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).
-3-
J-A02044-19
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.4
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.
(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.
Before addressing the merits of this appeal, we must determine whether
Johnson timely filed his notice of appeal, as it implicates the jurisdiction of our
____________________________________________
4 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).
-4-
J-A02044-19
appellate court. See Commonwealth v. Williams, 106 A.3d 583, 587 (Pa.
2014) (“A timely notice of appeal triggers the jurisdiction of the appellate
court, notwithstanding whether the notice of appeal is otherwise defective.”).
Instantly, the order from which Johnson appeals was filed on March 19, 2018.
However, Johnson’s notice of appeal was not docketed in the trial court until
April 23, 2018.
In Commonwealth v. Jones, 700 A.2d 423 (Pa. 1997), our Supreme
Court held that the “prisoner mailbox rule” (the “Rule”) applies to appeals
from court orders under Pa.R.A.P. 903. In Jones, the Court stated, “we are
inclined to accept any reasonably verifiable evidence of the date that the
prisoner deposits the appeal with the prison authorities” to satisfy the burden
of proof under the prisoner mailbox rule. Id. at 426. Some examples of
evidence our courts have accepted to prove the date of deposit under the Rule
include: a cash slip given by prison officials to the defendant that noted both
the deduction from the prisoner’s account for the mailing and the date of
mailing; an affidavit attesting to date of deposit with prison officials; internal
operating procedures regarding mail delivery in both the prison and the
Commonwealth Court and the delivery route of the mail; and a form of
certified mail indicating the date of mailing accompanied by an envelope
bearing a US Postal date stamp. See Smith v. Pennsylvania Board of
Probation and Parole, 683 A.2d 278 (Pa. 1996); Miller v. Unemployment
Compensation Board of Review, 476 A.2d 364 (Pa. 1984).
-5-
J-A02044-19
In his second response to our Court’s rule to show cause, Johnson stated
that “the D.O.C. Mailroom has been sending mail late and the notice of appeal
was sent out on the 18h day of April [and] the D.O.C. had control of the
[n]otice of [a]ppeal. The three-day [m]ailbox [r]ule provided by Pa.R.A.P.
121(e).” Second Response to Rule to Show Cause, 10/2/18, at ¶ 1. In his
response to our Court’s rule to show cause, Johnson also attached a copy of
a DC-138A cash slip, dated April 18, 2018, signed and approved by a DOC
employee. The mailing is addressed to Brenda J. Albright, the Clerk of Courts
of Perry County. The cash slip, however, does not contain a postmark, fails
to indicate what Johnson deposited with prison authorities requiring postage
and a deduction from his account, and does not show the docket number of
the governmental unit. Smith, supra. Moreover, there is no original of the
cash slip or post-marked envelope in the certified record to verify when he
deposited the notice of appeal. See Commonwealth v. Chambers, 35 A.3d
34 (Pa. Super. 2011) (where defendant did not provide PCRA court with cash
slip, but presented it for first time as exhibit to appellate brief, our Court
remanded matter to provide defendant with opportunity to present evidence
to PCRA court for determination as to timeliness of filing).
Accordingly, we are unable to conclude that the cash slip attached to
Johnson’s response to the rule to show cause is verifiable evidence of the date
that he deposited his notice of appeal with prison authorities or in the prison
mailbox to invoke the prisoner mailbox rule. Thus, we must remand the
matter for a proper determination on the issue.
-6-
J-A02044-19
Because there is an issue with regard to whether Johnson did indeed file
his notice of appeal in a timely fashion, we decline to address the merits of
this appeal. Smith, supra. The matter is remanded to the trial court, for 60
days from this filing, to determine the timeliness of Johnson’s notice of appeal.
Johnson shall be given 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 as to the date that he deposited his notice of
appeal with prison authorities, to the PCRA court and for the PCRA court to
make a determination as to the timeliness of the filing of his notice of appeal.
Case remanded. Panel jurisdiction retained.
-7-