Com. v. Johnson, J.

Opinion

J-S66034-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : JUSTIN JUAN JOHNSON, : : Appellant : No. 803 WDA 2015

Appeal from the PCRA Order Entered May 8, 2015 in the Court of Common Pleas of Lawrence County Criminal Division at No(s): CP-37-CR-0001512-2011

BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED DECEMBER 22, 2015

Justin Juan Johnson (Appellant) appeals from the order entered on

May 8, 2015, which granted in part and denied in part his petition filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

We affirm in part and vacate in part.

Following convictions for attempted criminal homicide, aggravated

assault, and aggravated assault with a deadly weapon, Appellant was

sentenced to an aggregate term of 20 to 40 years of imprisonment. This

Court affirmed Appellant’s judgment of sentence on July 17, 2013.

Commonwealth v. Johnson, 82 A.3d 1069 (Pa. Super. 2013) (unpublished

memorandum). Although Appellant requested that his counsel file a petition

for allowance of appeal to our Supreme Court, counsel failed to do so.

* Retired Senior Judge assigned to the Superior Court. J-S66034-15

Appellant pro se timely filed a PCRA petition seeking restoration of his

right to file post-sentence motions and a direct appeal nunc pro tunc. After

numerous substitutions of counsel and continuances, counsel filed an

amended petition on February 17, 2015. Therein, Appellant incorporated his

pro se petition by reference, and also sought a new trial based upon multiple

allegations of ineffective assistance of trial counsel.

Following a hearing, the PCRA court entered an order reinstating

Appellant’s direct appeal rights in the form of allowing him to file a petition

for allowance of appeal nunc pro tunc to the Supreme Court of Pennsylvania

and dismissing “[a]ll other requests for relief” stated in the original and

amended PCRA petitions. Order, 5/11/2015, at 2. Notably, the court did

not inform Appellant as to the deadline for filing his petition for allowance of

appeal nunc pro tunc. Additionally, in the opinion the PCRA court authored

in support of its order, the court, inter alia, rejected Appellant’s requests for

a new trial based upon his claims of ineffective assistance of counsel, relying

upon the reasons stated in its opinion authored for Appellant’s first appeal to

this Court. PCRA Court Opinion, 7/16/2015, at 5-6.

Appellant timely filed a notice of appeal and, following a court order, a

statement of errors complained of on appeal. In both filings, Appellant

claimed that the PCRA court erred in failing to reinstate his direct appeal

rights as to issues prior counsel failed to raise in his brief to this Court.

Concise Statement of Errors, 5/26/2015; Appellant’s Brief at 10.

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The Commonwealth did not appeal the PCRA court’s order,1 and

Appellant has not rejected the PCRA court’s allowing him to file a nunc pro

tunc petition in our Supreme Court. To the contrary, Appellant states that

he has appealed the portion of the order denying his remaining claims “prior

to filing his appeal to the Pennsylvania Supreme Court, unless this Honorable

Court directs him otherwise.” Statement of Jurisdiction, 8/11/2015. This

Court now directs him otherwise.

With his original direct appeal rights reinstated, Appellant’s judgment

of sentence is not final, and all additional PCRA claims are premature. See

Commonwealth v. Seay, 814 A.2d 1240, 1241 (Pa. Super. 2003)

(“Inasmuch as Appellant’s direct appeal is still pending…, it is patently clear

that this PCRA petition is premature.”); Commonwealth v. Kubis, 808

A.2d 196, 198 (Pa. Super. 2002) (“Appellant filed a premature PCRA petition

… while his direct appeal was still pending. The PCRA provides petitioners

with a means of collateral review, but has no applicability until the judgment

of sentence becomes final.”).

Indeed, when the PCRA court determined that Appellant was entitled

to file nunc pro tunc a petition for allowance of appeal to our Supreme Court,

it should have refrained from addressing the merits of Appellant’s remaining

claims, as Appellant is unable to appeal the disposition of those PCRA claims

at this time. Commonwealth v. Miller, 868 A.2d 578, 580 (Pa. Super.

1 The Commonwealth has not even filed a brief in this Court.

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2005) (“Because the PCRA court granted Appellant reinstatement of his

appellate rights nunc pro tunc, its consideration of Appellant's additional

issue did not result in a disposition Appellant could appeal.”). At this

juncture Appellant must exhaust his direct appeal rights prior to litigating

any other PCRA claims.

Therefore, we affirm that portion of the PCRA court’s order that

granted Appellant leave to file nunc pro tunc a petition for allowance of

appeal to our Supreme Court, and vacate that portion of the order that

disposed of Appellant’s remaining PCRA claims. Appellant has 30 days from

the date of this memorandum to file, nunc pro tunc, a petition for allowance

of appeal to our Supreme Court.2 Upon the conclusion of Appellant’s original

direct appeal, Appellant may exercise his rights under the PCRA to attack

collaterally that final judgment of sentence.

Order affirmed in part and vacated in part. Jurisdiction relinquished.

2 As we noted above, the order restoring Appellant’s right to file a direct appeal did not indicate that Appellant had to file a petition of allowance of appeal within 30 days of the court’s order to initiate a timely-filed direct appeal nunc pro tunc. Had the PCRA court instructed Appellant to file the nunc pro tunc petition within 30 days of the court’s order, our decision to allow Appellant to pursue his petition for allowance of appeal, at least arguably, would not be available to this Court. See Commonwealth v. Wright, 846 A.2d 730, 734-35 (Pa. Super. 2004) (explaining that an appellant must file a notice of appeal within 30 days of the order granting the reinstatement of direct appeal rights nunc pro tunc but further observing that the order granting those rights must inform the appellant that he or she has to file the notice of appeal within 30 days).

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/22/2015

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