Com. v. Johonoson, F.

• Court: Superior Court of Pennsylvania
• Decided: January 22, 2019
• Docket: 56 MDA 2018
• Status: Unpublished

Opinion

J-S45008-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : FRANKLIN JOHONOSON, : : Appellant : No. 56 MDA 2018

Appeal from the PCRA Order November 28, 2017 in the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0004407-2009

BEFORE: OTT, J., MUSMANNO, J., and PLATT*, J.

MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 22, 2019

Franklin Johonoson (“Johonoson”) appeals, pro se, from the Order

dismissing his second Petition for relief filed pursuant to the Post Conviction

Relief Act (“PCRA”).1 See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

In 2010, a jury found Johonoson guilty of burglary. The trial court

sentenced Johonoson to four to ten years in prison.2 This Court affirmed the

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1 Johonoson filed a separate Petition, involving the sentence imposed at CP- 36-CR-4190-2012 (“4190-2012”), raising the same claims as he raised in the instant Petition. Johonoson filed a Notice of Appeal from the PCRA court’s Order disposing of his Petition at 4190-2012, which was docketed at 41 MDA 2018.

2 At 4190-2012, the trial court sentenced Johonoson to three to seven years in prison, concurrent to the sentence he was serving at 4407-2009.

____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S45008-18

judgment of sentence on September 12, 2011. See Commonwealth v.

Johonoson, 34 A.3d 221 (Pa. Super. 2011) (unpublished memorandum).

Johonoson filed a timely first PCRA Petition, which was denied. This

Court affirmed the denial. See Commonwealth v. Johonoson, 102 A.3d

535 (Pa. Super. 2014) (unpublished memorandum).

On November 11, 2017, Johonoson filed a second pro se PCRA Petition.

On November 28, 2017, the PCRA court denied the Petition as untimely filed.3

Johonoson filed a timely Notice of Appeal and a court-ordered Pa.R.A.P.

1925(b) Concise Statement.

Under the PCRA, any PCRA petition, “including a second or subsequent

petition, shall be filed within one year of the date the judgment becomes

final[.]” 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence becomes final

“at the conclusion of direct review, including discretionary review in the

Supreme Court of Pennsylvania, or at the expiration of time for seeking the

review.” Id. § 9545(b)(3). The PCRA’s timeliness requirements are

jurisdictional in nature and a court may not address the merits of the issues

raised if the PCRA petition was not timely filed. Commonwealth v. Albrecht,

994 A.2d 1091, 1093 (Pa. 2010).

3 The PCRA court did not provide Johonoson with a Pa.R.Crim.P. 907 notice. However, “where the PCRA Petition is untimely, the failure to provide such notice is not reversible error.” Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) (citation omitted).

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Here, Johonoson’s judgment of sentence became final in October 2011,

when the time to file an appeal to the Supreme Court of Pennsylvania expired.

See 42 Pa.C.S.A. § 9545(b)(3). Johonoson had until October 2012 to timely

file a PCRA petition. Therefore, Johonoson’s November 11, 2017 PCRA Petition

is facially untimely.

However, Pennsylvania courts may consider an untimely petition if the

appellant can explicitly plead and prove one of the three exceptions set forth

under 42 Pa.C.S.A. § 9545(b)(i)-(iii). Any petition invoking one of these

exceptions “shall be filed within 60 days of the date the claim could have been

presented.” Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094.

Johonoson invokes the newly-discovered fact exception and claims he

was unlawfully imprisoned between April 2, 2017, and September 20, 2017.

Brief for Appellant at 4-5, 9. However, even if Johonoson’s sentencing

information constitutes a newly-discovered fact, he has failed to plead and

prove why any information regarding his prison term could not have been

ascertained earlier by the exercise of due diligence. See 42 Pa.C.S.A.

§ 9545(b)(1)(ii) (stating that under the newly-discovered fact exception, a

petitioner must prove that “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[.]”). Indeed, Johonoson ostensibly learned about the

unlawful detainment on April 2, 2017, well over 60 days before he filed his

PCRA Petition. See Commonwealth v. Fennell, 180 A.3d 778, 783 (Pa.

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Super. 2018) (holding that the newly-discovered fact exception did not apply

where a petition had not been filed within 60 days after the petitioner obtained

information which formed the basis of the fact).4 Therefore, Johonoson did

not successfully invoke the exception.5

Accordingly, because Johonoson did not successfully invoke any of the

three exceptions necessary to circumvent the PCRA’s timeliness requirement,

we lack jurisdiction to address the merits of his claims on appeal.

Order affirmed. Motion to Strike Commonwealth’s Brief denied.

*This decision was reached prior to the retirement of Judge Platt.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 01/22/2019

4 To the extent Johonoson was harmed by actions of the Department of Corrections and the Board of Probation and Parole, his remedy was to seek administrative review, and in the event of an adverse determination, an appeal to the Commonwealth Court.

5 Johonoson also raises a legality of sentence challenge, without invoking any timeliness exception. It is well-settled that this Court cannot review a legality of sentence claim where the court does not have jurisdiction. See Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (stating that “[t]hough not technically waivable, a legality [of sentence] claim may nevertheless be lost should it be raised ... in an untimely PCRA petition for which no time-bar exception applies, thus depriving the court of jurisdiction over the claim.”) (citation omitted).

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