Com. v. Johnson, C. (memorandum)

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J-S49034-17 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA v. CALVIN JOHNSON Appellant No. 1852 WDA 2016 Appeal from the PCRA Order November 8, 2016 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0005737-1976 BEFORE: DUBOW, SOLANO, and FITZGERALD,* JJ. MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 30, 2017 Appellant, Calvin Johnson, appeals pro se from the order entered in the Allegheny County Court of Common Pleas dismissing his seventh Post Conviction Relief Act1 (“PCRA”) petition as untimely. Appellant claims that his second PCRA petition was improperly dismissed and his current PCRA counsel was ineffective. We affirm. We adopt the facts and procedural history set forth by the PCRA court’s opinions. See PCRA Ct. Op., 3/9/17, at 1-3; PCRA Ct. Op., 11/8/16, at 1-3. In 1977, Appellant was sentenced to an aggregate term of twentyeight and one-half to fifty-seven years’ imprisonment * Former Justice specially assigned to the Superior Court. 1 42 Pa.C.S. §§ 9541-9546. following his J-S49034-17 convictions for reckless endangerment,2 terroristic threats,3 kidnapping,4 robbery,5 and criminal conspiracy.6 Instantly, Appellant raises the following issues for review: I. Whether the PCRA [court] erred by not ruling [on] counsel’s ineffectiveness for failing to amend Appellant’s PCRA petition with regard to his interference by government officials claim? II. Whether the PCRA court erred when it omitted from its November 8, 2016 final order and opinion the facts in regard to Appellant’s interference by government officials clam, argued during Appellant’s October 14, 2016 PCRA evidentiary hearing? III. Whether the PCRA court erred by failing to quash appointed PCRA counsel’s “no Merit” letter since it had been procedurally [defective] when it violated the standards outlined in Turner/Finley? IV. Whether the PCRA court erred when it over the objection of [ ] Appellant, permitted counsel who was no longer the counsel of record to amend her procedural[ly] [defective] “no merit” letter? Appellant’s Brief at 3. Pro se Appellant argues that his instant seventh PCRA petition is timely pursuant to the governmental interference exception to the PCRA time bar 2 18 Pa.C.S. § 2705. 3 18 Pa.C.S. § 2706. 4 18 Pa.C.S. § 2901. 5 18 Pa.C.S. § 3701. 6 18 Pa.C.S. § 903. -2- J-S49034-17 under 42 Pa.C.S. § 9545(b)(1)(i).7 The crux of Appellant’s argument concerns his contention that his second PCRA petition was erroneously dismissed by the PCRA court in 1990 because the court incorrectly found that his claims had been “previously litigated.” He also avers that the court never instructed him regarding his right to appeal from that decision. Appellant asserts that he did not discover this mistake until October 5, 2015, and filed the instant petition within sixty days of his discovery. Likewise, Appellant claims that his most recent PCRA counsel was ineffective for failing to file an amended PCRA petition on his behalf to properly reflect his arguments. Appellant also points out that his PCRA counsel’s Turner/Finley8 brief submitted to the PCRA court was procedurally defective, and he submits that the PCRA court erred by allowing PCRA counsel to amend her “no merit” letter. 7 Appellant filed his first petition for post conviction relief in 1980 pursuant to the Post Conviction Hearing Act, the predecessor to the PCRA. The instant PCRA petition was filed in 2015. “The amended PCRA provided a one-year grace period . . . to first-time PCRA petitioners whose judgments of sentence became final prior to the effective date[, January 16, 1996,] of the amended Act.” Commonwealth v. Robinson, 12 A.3d 477, 479 n.3 (Pa. Super. 2011). Therefore, the grace period does not apply in the present case, as this was not Appellant’s first PCRA petition. See id. 8 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). -3- J-S49034-17 On appellate review of a PCRA ruling, “we determine whether the PCRA court’s ruling is supported by the record and free of legal error.” Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008). We . . . turn to the time limits imposed by the PCRA, as they implicate our jurisdiction to address any and all of Appellant’s claims. To be timely, a PCRA petition must be filed within one year of the date that the petitioner’s judgment of sentence became final, unless the petition alleges and the petitioner proves one or more of the following statutory exceptions: (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. § 9545(b)(1). We emphasize that it is the petitioner who bears the burden to allege and prove that one of the timeliness exceptions applies. In addition, a petition invoking any of the timeliness exceptions must be filed within 60 days of the date the claim first could have been presented. 42 Pa.C.S. § 9545(b)(2). . . . Id. at 719-20 (some citations omitted and emphasis added). Our Supreme Court -4- J-S49034-17 has repeatedly stated that the PCRA timeliness requirements are jurisdictional in nature and, accordingly, a PCRA court cannot hear untimely PCRA petitions. In addition, we have noted that the PCRA confers no authority upon this Court to fashion ad hoc equitable exceptions to the PCRA time-bar in addition to those exceptions expressly delineated in the Act. We have also recognized that the PCRA’s time restriction is constitutionally valid. Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations and quotation marks omitted). After careful consideration of Appellant’s brief, the record, and the decision of the PCRA court, we affirm on the basis of the PCRA court’s opinions. See PCRA Ct. Op., 3/9/17, at 3-5; PCRA Ct. Op., 11/8/16, at 1-4 . (holding: (1) Appellant’s current PCRA petition, filed over thirty years after his was judgment of sentence became final, was patently untimely; (2) Appellant has not proven any of the timeliness exceptions because he failed to establish that he could not have discovered a mistake by the PCRA court, made in 1990, through the exercise of due diligence, or filed the instant petition within sixty days of the date the claim could have been presented; (3) PCRA counsel was not ineffective but instead provided “competent representation” and “thoroughly discharged her duties”). affirm the PCRA court’s dismissal of Appellant’s petition. Order affirmed. -5- Accordingly, we J-S49034-17 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 8/30/2017 -6- Circulated 08/03/2017 12:15 PM IN THE COURT OF COMMON PLEAS OF ALLf:GHENY COMMONWEAL TH OF PENNSYLVANIA, COUNTY, PENNSYLVA IA QRIMINAL DIVISION vs. QC No. 1976-5737 CALVIN JOHNSON, ORIGINAL Defendant.' · t ~:'\ -Cl """> , ~ '. ,! .. Criminal Divlsiqn Dept. of court Reqords Allegheny County, PA. MEMORANDUM ~ ' ORDER This is an appeal from an Order entered on November 8, 2016, dismissing t Defendant's seventh (7th) pro se Petition under the Post-Conviction Relief Act ("PC The reasons undertylnq the dismissal of the Defendant's seventh (71h) PCRA petitio are set forth in the court'sNovember 8, 2016 Order, which is attached hereto. Bee use the reasons underlying the. dismissal already appear on the record, the court will for go writing a formal trial courtopinlon because the Nqvember 8, 2016 Order satisfies th ; ... : requirements of Pa. R. App: 1925. See Pa. A. App. P. 1925 (a)(1) (requiring that th y 1 judge who e"r1tered the order giving rise to the notice of appeal file a "brief opinion o the reasons for the order" ' only 14if the reasons for the order do not already appear of -v-, record"). .. . ·. However, in the interest of clarifying the relevant timeline of events, the cou ,, notes the following: 1) on· November , . ., ~f, 2015, the Defendant 1 filed his seventh (71h) prose PCR petttlon, The ·PCRA petition was asslqned to this court on December 2, 2 2) On December 9, 2015, this Court lssued an order appointing Suzanne S an, Esquire to represent the Defendant ii) ~is PCRA Appeal. PCRA Counsel given 90 days to file an Amended PCAA Petltlon or a No-Merit Letter. as 3) On February 22; ·2016, the court received multiple pro se pleadings from he Defendant. The prose pleadings wer(l dlsmissed on February 23, 2016 because PCRA'Counsel had already been appointed to the case, and th pro se pleadings were forwarded to PCRACounsel for her review. 4) After receiving one (1) extension of time, PCRA Counsel filed on April 13, 2016, a "Motton to Withdraw as Couns~I and 'No-Merit' Letter pursuant t Turner/Finley." . 5) The court revlewed the thorough and detailed No-Merit Letter, and it ultlrnatsly agreed with the conclusion tt)at the Defendant's 7th PCRA petit n was untimely ~rid that it failed to meet any of the limited exception to the jurisdictional time-bar .. Accordingly, May 4, 2016, the court issued its irst (P'f Notice of lii~ent to Dismiss Order pursuant to Pa. R. Crim. P. 907(1 ). on I 6) On May 23, :,. 201:6, the court received the Defendant's pro se response to he Court's proposed dismissal order. In his response, the Defendant argue that PCRA Counsel.provided Ineffective asslstance of counsel. In essence, t e Defendant claimed that PCRA Oounsel'was ineffective for failing to inves.tigate his hlalms to his satisfaction, for disagreeing With him regardi the)nerits of hls'clajms, and for her comrnlttlnq immaterial typographical errors in the No~Merit Letter which inadvertently referenced a different defendant's name and an incorrect appointment date. 7) In .li~ht of the nature of the claims raised in the Defendant's prose respo e, the. court felt that it was In the Defendant's best interest to schedule an evldentiary hea(i.ng on the Defendant's claim that he received ineffective assistance f rorr(PCRA Counsel. The evidentiary hearing was scheduled o take ·place on 0.¢tober 14, 2016. 8} Oi:i·s:eptember(14, 20161 PCRA Counsel filed a Petition to Amend the No Meri_t.Letter so as to correct the typoqraphical errors which were contalne the··original No;Merit Letter filed on AprJI 13, 2016. PCRA Counsel confir thatthe typ?gr{lppical errors did not impact the substance o~ her analy_sis the; No-Ment Letter, because the facts and arguments contained therein pertelned only to.the Defendant's case, The petition was granted that sa day.·:-· ',1~~::. .' :, ' ·20, 2016, the Defendant filed a pro se response to PCRA Counsel's Motibn to Amend the No-Msrlt Letter, objecting to the . 9) 011. September ,. \, ,,. 1,. 2 in ed n e characterization of the errors as "typqgraphical" and arguing that the No- erit Letterwas "defective" and 'procedurally inconslst[e]nt with the rules of criminal procedure." 1 O) On. pctober 14, 2016, a PCAA Hearing was held for the purpose of addr~ssing the Defendant's claim that he received ineffective assistance rom PCRi,\ Counsel: (PCRA Hearing Transcript ("HT'), 10/14/16, pp. 1-19). -·~ .. 11) At the PCRA Hearing, the Defendant claimed that PCRA Counsel was ineffective because: ( 1) she disagreed·with his view that he had a meritor ous claim .(HT, pp. 3·-6, 1 O); (2) she inadvertently committed the typographical erro.r:regarding his name and asslqnrnent date (HT, pp. 6, 8-9); and (3) s e · refused to file an Amended PCRA petition at his request (HT, p. 7). . . \ I I ti 12) Aft~r considering the testimony presented by PCRA Counsel and the arg(frnents made by the Commonwealth, the court agreed that dismissal f the Defendant's: pro se petition was appropriate because the Defendant's seventh (7th) PCRApetition was untimely and he failed to prove that he et any of the llrnlted exceptions to the jurisdictional time-bar. 42 Pa. C.S.A. §9S:45(b)(1 )(i)-{111). Accordingly, on November 8, 2016, the court issued i finaUdismissa1'order. , ' ,. -, L .l • This timely appeal follow~d. On January 9, io1 ?, the Defendant submitted a t,) timely Concise. statementot Errors Complained Qf on Appeal (°Concise Statement'' , : . . . '. . ·' ~.· .~.: ·~ raising eight}8) ·.· Issues forfreview. (Concise Statement, pp, 2-3). A copy of the Co else 1 ' . ' ....- ,, Statement atso is attachsdjo this Order. The Defendant's allegations of error on a peal ,, are frivolous. a_ncJ do not merit relief. Whlle the court finds it unnecessary to add res the ·/•; claims in detail since the reasons for the dismissal already appear in the record, th ·i', , . court does note that the Defendant's claims stem from his insistence that he met th timeliness exception unde,r42 Pa. C.S.A. §9545(b)(1 )(i) and (ii), and that PCRA . " •· Counsel provided lneftectlve assistance of counsel. As stated in the Court's Nove ber 8, 2016 Order, the Defendant canted the burden of proving by a preponderance of ··.. ' evidence thathls claims notonly fell within one ~f the limited timeliness exceptions . ,i;.~. -, . ' . ., 3 under §9545(b)(1){i)-(ill), but that the claim was raised "within 60 days of the date t . . claim could have been presented." Commonwee,lth v. Lark, 746 A.2d 585, 587 (Pa. 2000) (quoting.42 Pa. C.S.A. § 9545(b)(2)). Ev~r assuming for the sake of argume t • j that the Defendant's claims did meet one of the tjmeliness exceptions, the Defenda t . . failed to meet his burden of proving that he ralsed the exceptions within 60 days of he ., ' ~'. date that his claims of mental lncompetence/qovernrnent interference could have b en presented. Furthermdre, the Defendant's claims that he received ineffective assistance of PCRA CounseUs whollyt(';vithout merit. PCRA Counsel, a seasoned attorney with .{ . !~ . decades of appellate ex~flence, , ... . provided competent representation in connection ith ,'} J. . .' •• the PCRA proceedings ~n~ she thoroughly dtscharqed her duties, notwithstanding t e i -», Defendant's claims to ih.e'contrary. As explained at the PCRA Hearing and in the Amended Petitlon she file~ on September 6, 201 e. the typographical errors were Inadvertent and:did not affect the substance of her analysis, which was specific to t e ,~ . . . ,.· Defendant's case. ' Accordingly, the Defendant cannot meet his burden of proving that he was •.. ~ I ·. prejudiced by ~-~Y action . ; •"' a~· Inaction on the part of PCAA Counsel, and he therefore . ' ··, cannot provethat PCRA Qpunsel provided detiolent representation In accordance . \ ·0 . . ~-·· Strickland v. Washington,·466 U.S. 668 (1984) and Commonwealth v. Pierce, 527 e- •. . 973 (Pa. 1987),which . . . . require a showing of actual prejudice. See Commonwealth v (~·: , Spotz. 84 A.3d 294, 315 (Pa. 2014) (explaining that the "Strickland/Pierce 'prejudic standard (l requfre[s] Appellee to show that his trial counsel's conduct had an actual ' adverse effect . on the outcome . of the proceedlnqs" ). .. 4 Therefore, for the reasons se .2d forth in this Court's November 8, 2016 Order, the dismissal of the Defendant's seve th '· (7th) PCRA petition was appropriate, and it respectfully should be .upheld. BY THq COURT: ! . ' (i, ··-· ./ ,·•!. · -~ 5 Circulated 08/03/2017 12:15 PM •. IN THE COURT OF COM.MON PLEAS OF ALl,..EGHENYCOUNTY, PENNSYLV IA ;. :: CRIMINAL DIVISION ) COMMONWEALrH OF PENNSYLVANIA . : ) ) cc « .. v. 1976-5737 ) ) ) ) ., CALVIN JOHNSO_N, Defendant. ORDER OF COURT . .. AND N~W. to-wit, «.«: I day of November, ~016, upon I consideration of PCRA Counsel's No-Merit Letter, filed on April 1!3, 2016, the Defendant's prose response to the No-MeriJ Letter, received on May 23, 201 , ,, and PCAA Counsel's Petition to Amend the No-Merit Letter, filed on Septemb r 6, 2016, and upon careful consideration of the evidence and argument prese at the PC.RA hearing held on October 14, 2016, .. the court HEREBY enters this final order DISMISSING . the Defendant's seventh_.:'.'(71h) prose PCRA petition as untimely. In entering this nal ·.- I '. dismissal order, the ~.ourt notes the followin~: ': ·:, 1) The Defe~~ant filed the instant petition on November 25, 2015; .. . . I . i,; 2) ~~As set fo~ry in the court's Notice of Intent to Dismiss Order filed on c:> <-<- ,z.. ; . . ,.. ~ay 4~~'-ly·,,this court carefully reviewed P~RA counsel's No-Merit Letter file 1-<= "'. • ( 0 \v.J \\ ~ _.. u- 1 . : ~Aprif.i~t'~16, an~:-it conducted its own ipdependent review of the matters ,.,.... (_) .- \> ~ o ;;c.·.,t:. v-, rai~ 0 ~ '-:· . ,. th~1, . ~-;. . . :~~) l,) ~ 4(. · -:, • ,:' : .. ~3) PtCRA Co.ynsel had concluded that the Defendant's seventh (71h) P RA .·:.-;'·.' . :.··· 1 \.·. petition was time-barred, and that none of the exceptions to the jurisdictional ti e- .. bar applied. See 42.. J;'a. C.S.A. §9545(b)(1)(i)-(iii); ~ ; : -, 4) ·.1he court aqreed with the assessment and conclusions of PCRA Counsel as set tormin her No-Merit Letter; '. ·. . . 5) · Howeverpiven the nature of the claims raised in the Defendant's pt. se > response to the court's Notice of Intent to Dismiss Order, the court . held an evidentiary hearing or October 141 2016; 6) At the hearlnq, the Defendant essentially maintained that he was enti led to PCRA relief because (1) PCRA Counsel's No-Merit Letter contained immat rial typoqraphlcat errors ~nd (2) PCRA Counsel Qid not file an Amended PCRA peti ion • i-'t. :,• asserting mental lncdmpetence, which he claims would have met the timelin ss . exception under 42 Pa. C.S.A. §9545(b)(1 )(ii); 7) .The court .!~r·aware that "mental lncompetence at the relevant times, if .. ·,,· proven, may satisfy t~e requirements of Section 9545(b)(1 )(ii)1 in which case, the \:~ claims defaulted ~/{operation of that Incompetence may be entertain d." . ( Commorf~ealth v. ./ cfr~'·;.z, 852 A.2d 287, 288 (Pa. 2004); ? ·'i -I .. 8) .,'However.jri . order for a clalrn of mental incompetence to satisfy the ti e. .. , · , bar exception, a def~:ndant must prove: "(1) he was and remained incompe nt . .' throughout the period during which his right to file a PCRA petition lapsed; and (2) (;. that his current pE!j.ltlonwas timely file~ within 60 days of his becom ng ·,·. .... sufficiently , competent to ascertain the tacts upon which his underlying cla ms l:i'; ·,·. -; . are predicated." Cruz1 :supra, at 288 (emphasis added); _. .: 9): The Defen~ant was sentenced on November 18, 1977, and the Supe ior ' ., ·, r. 2 Court of Pennsylvania affirmed his judgment of sentence on February 13, 19 o. The Pennsylvania Supreme Court denied the Defendant's Petition for Allowa of Appeal on August 27, 1980; 10). The Defendant's judgment of sentence therefore became final on November 25, 1980, When the ninety (90) dftY window for seeking review bet re the United States Supreme Court expired. fee Commonvyealth v. Johnson. A.2d 1291, J 294 (Pa. Super. 2002); 42 Pa. Q.S.A. §9545(b)(3). 0 . . 11) The Defendant, therefore, had until November 25, 1981, to file a tim ly PCRA Petition; ,• .\: 12) The law is ·well settled that any PCRA petition, lncluding a second o <, ··.'(, successive petition, must be filed within one (1) year of the judgment of sente ce becoming final, unless one of the three (3) limited exceptions applies; See 42 a. C.S.A. §9545(b)(1)(i)-(iii); Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014). 13) ~s noted in:PCRA Counsel's No-Merit Letter, this is not the first tim that the Defendant . Mas attempted to claim mental incompetence as a way to .. .. overcome the statutory time-bar. Indeed, he has raised his mental incompete ce I> ·::•" claim in four (4) prior PCRA petitions: (1) His second (2nd) PCRA petition filed n ·, June 20, 1990; (2) His-third (3'd) PCRA petition filed on April 21, 1998; (3) Hist th ·. ,.· . -~ (51h) PCR~ petition filerif on September 24, 2004; and (4) His sixth (61h) PCRA ti d on Septern,Qer7, 201,Ct. See (No Merit Letter, dated 4/13/16, pp. 5-6, 1 O); ·• 14) Clearly, theDetendant is unable to prove that his instant claim of ~- .. '4: \ "i . -~ . . ;y._; 3 .: ·. mental incompetence was raised within 60 days of him becoming "sufficie tly claims are predicat d." ·' ' . }J ascert_ain the Iacts upon which his underlying competent Cruz, supra, at 288; . 15) Based on· the evidence of record and the arguments presented at t e hearing, this court iswell satisfied that the D~fendant is not entitled to PCRA r because his seventh (71h) PCRA petition is qrossly untimely and fails to meet ny of the time-bar exceptions; 16) As such, the Defendant's seventh prose PCRA petition is HEREB DISMISSE~ for the ajorementlonsd reasons; . 17) T:he Petitioner is hereby put on notlce that he has the right to file, eit er pro se cfr throuqh privately retained counsel, an appeal to the Pennsylva Superior Court within thirty (30) days from the date of this Order. • .. .r • • . ',··_ BY THE '. . ' .. BE .-_. .. ·.· . '. ·-. :·.· 4 COURT: ia

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