Com. v. Clark, J.

• Court: Superior Court of Pennsylvania
• Decided: September 25, 2014
• Docket: 3094 EDA 2013
• Status: Unpublished

Opinion

J-S59018-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JERMAINE K. CLARK

Appellant No. 3094 EDA 2013

Appeal from the PCRA Order October 21, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0011902-2008

BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 25, 2014

Jermaine K. Clark appeals pro se

his petition, filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546, as untimely. After careful review, we affirm.

In September 2009, Clark entered a negotiated plea to aggravated

assault and conspiracy. In return for his plea, the Commonwealth agreed to

nol pros the remaining charges and recommended concurrent sentences of

2½-10 years in prison. On December 16, 2009, the trial court sentenced

Clark to the negotiated term of 2½-

appeal was filed. On June 15, 2012, Clark filed the instant pro se PCRA

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* Retired Senior Judge assigned to the Superior Court. J-S59018-14

petition. Counsel was appointed, who submitted a Turner/Finley1 brief

petition was untimely and no exceptions to the PCRA timing requirements

were met. On September 4, 2013, the trial court sent Clark a Pa.R.Crim.P.

907 notice of its intent to dismiss his petition as untimely. Clark filed a pro

se

appeal followed.

On appeal, Clark contends that the PCRA court abused its discretion by

arbitrarily dismissing his petition as untimely where the record demonstrates

that he was entitled to an exception under 42 Pa.C.S.A. § 9545(b)(1)(ii). 2

Generally, a petition for PCRA relief, including a second or subsequent

petition, must be filed within one year of the date the judgment is final. See

42 Pa.C.S. § 9545(b)(3); see also Commonwealth v. Alcorn, 703 A.2d

1054 (Pa. Super. 1997). There are, however, exceptions to the timeliness

requirement, set forth at 42 Pa.C.S. § 9545(b)(1)(i),(ii), and (iii). Where

the petition alleges, and the petitioner proves, that an exception to the time ____________________________________________

1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). 2 The standard of review of an order denying a PCRA petition is whether that determination is supported by the evidence of record and is free of legal

support for the findings in the certified record. Commonwealth v. Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012).

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for filing the petition is met, the petition will be considered timely. Id. The

timeliness requirements of the PCRA are jurisdictional in nature and,

accordingly, a PCRA court cannot hear untimely petitions. Commonwealth

v. Robinson, 837 A.2d 1157 (Pa. 2003).

n

January 16, 2010, thirty days after he was sentenced and the time expired

to file a direct appeal to this Court. See

therefore, had to be filed by January 16, 2011, to be considered timely

under the PCRA. Because Cl

after that date, it is facially untimely.

section 9545(b)(1)(ii). This exception requires a petitioner to demonstrate

that he did not know of the facts upon which he based his petition and could

not have learned them earlier by the exercise of due diligence.

Commonwealth v. Monaco, 996. A.2d 1076 (Pa. Super. 2010). Moreover,

t be filed

within 60 days of the date the claim could first have been presented and the

petitioner must plead and prove specific facts that demonstrate his claim

was raised within that 60-day time frame. See 42 Pa.C.S. § 9545(b)(2).

In his brief, Clark c

evidence via first class mail on April 10, 2012, and later filed his petition on

1. Specifically, Clark contends that on April 10, 2012, he received a copy of

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deny his application for parole. In that notice it is indicated that the district

attorney advised the parole board not to release Clark. Accordingly, Clark

negotiated plea agreement, which included an agreed upon minimum term

of incarceration.

minimum term of his negotiated sentence, 2½ years in prison. Therefore,

as a reason for denying parole, it is merely one of four reasons stated. The

other reasons include: prior unsatisfactory parole supervision history;

minimization/denial of the nature and circumstances of offenses committed;

and lack of remorse for offenses committed. Therefore, while the D.A. may

have advocated against paroling Clark, it was not the singular reason for his

plea agreement precluding the D.A. from taking a negative position on 3 Accordingly, we fail to find that Clark has proven ____________________________________________

3 Even if under the PCRA timing exception, Clark did not comply with section 9545(b)(2) by filing his petition within 60 days of the date that he could have obtained it. Clark incorrectly measures the 60 days from the date that (Footnote Continued Next Page)

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supported by the evidence of record and is free of legal error. Johnston,

supra.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/25/2014

_______________________ (Footnote Continued)

See Commonwealth v. Porter, 35 A.3d 4 (Pa. 2012) (PCRA time bar not measured from when petitioner obtained information, but from when it could have been obtained). However, he offers no explanation as to why, with the

decision on the day it was rendered (February 16, 2012).

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