Com. v. Jones, D.

Opinion

J-S51002-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

DOUGLAS L.L. JONES

Appellant No. 544 EDA 2016

Appeal from the PCRA Order February 12, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008464-2012

BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

JUDGMENT ORDER BY GANTMAN, P.J.: FILED June 24, 2016

Appellant, Douglas L.L. Jones, appeals from the order entered in the

Philadelphia County Court of Common Pleas, which denied as untimely his

first petition brought pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-9546. On June 6, 2013, Appellant entered a negotiated

plea to third-degree murder, two firearms offenses, and possessing

instruments of crime. That same day, the court sentenced Appellant to an

aggregate term of twenty-five (25) to fifty-five (55) years’ imprisonment.

Appellant did not file a direct appeal. Appellant filed the instant PCRA

petition pro se on August 17, 2015, and the court appointed counsel who, on

December 11, 2015, filed a petition to withdraw and a “no-merit” letter

pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988)

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*Retired Senior Judge assigned to the Superior Court. J-S51002-16

and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

The PCRA court issued Rule 907 notice on January 11, 2016. On February

12, 2016, the PCRA court granted counsel’s petition to withdraw and

dismissed Appellant’s PCRA petition as untimely. Appellant timely filed a

notice of appeal that same day. The court did not order Appellant to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b), and Appellant did not file one.

The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008), cert.

denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277 (2009). A PCRA

petition must be filed within one year of the date the underlying judgment

becomes final. 42 Pa.C.S.A § 9545(b)(1). A judgment is deemed final at

the conclusion of direct review or at the expiration of time for seeking

review. 42 Pa.C.S.A. § 9545(b)(3). The three statutory exceptions to the

timeliness provisions in the PCRA allow for very limited circumstances under

which the late filing of a petition will be excused. 42 Pa.C.S.A. §

9545(b)(1)(i)-(iii). The timeliness exception in Section 9545(b)(1)(i)

requires the petitioner to plead and prove his failure to raise the claim

previously was the result of government interference. See 42 Pa.C.S.A. §

9545(b)(1)(i). To assert the timeliness exception contained in Section

9545(b)(1)(ii), a petitioner must allege and prove facts unknown to him,

which he could not have ascertained by the exercise of due diligence. See

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42 Pa.C.S.A. § 9545(b)(1)(ii). Section 9545(b)(1)(iii)’s timeliness exception

requires the petitioner to allege and prove a new constitutional right that has

been held to apply retroactively by the Pennsylvania Supreme Court or the

United States Supreme Court. See 42 Pa.C.S.A. § 9545(b)(1)(iii).

Instantly, Appellant’s judgment of sentence became final on or about

Monday, July 8, 2013, upon expiration of time to file a direct appeal to this

Court. See Pa.R.A.P. 903(a) (allowing thirty days to file notice of appeal to

this Court). Appellant filed his current petition on August 17, 2015, more

than two years later; thus, the petition is patently untimely. See 42

Pa.C.S.A. § 9545(b)(1). Significantly, Appellant’s petition did not

acknowledge its untimeliness or allege any exception to the PCRA time

requirements. See id. Therefore, the court properly dismissed the petition

as untimely.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/24/2016

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