Com. v. Kirnon, J.

• Court: Superior Court of Pennsylvania
• Decided: December 12, 2014
• Docket: 1028 EDA 2014
• Status: Unpublished

Opinion

J-S70023-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JAMIE KIRNON

Appellant No. 1028 EDA 2014

Appeal from the PCRA Order March 5, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0503741-2001

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

MEMORANDUM BY MUNDY, J.: FILED DECEMBER 12, 2014

Appellant, Jamie Kirnon, appeals pro se from the March 5, 2014 order,

dismissing his petition for relief filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

On November 4, 2003, a jury found Appellant guilty of first-degree

murder, aggravated assault, criminal conspiracy, carrying firearms in public

in Philadelphia, and possession of an instrument of a crime.1 On November

5, 2003, the trial court imposed a sentence of life imprisonment without

parole for first-degree murder. On December 22, 2003, the trial court

imposed an aggregate sentence of 114 to 228 months’ imprisonment for the

____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S.A. §§ 2502, 2702, 903, 6108, and 907, respectively. J-S70023-14

remaining charges, to run consecutive to his life sentence. This Court

affirmed Appellant’s judgment of sentence on January 13, 2005.

Commonwealth v. Kirnon, 872 A.2d 1272 (Pa. Super. 2005) (unpublished

memorandum). Appellant did not file a petition for allowance of appeal with

our Supreme Court. As a result, his judgment of sentence became final on

February 14, 2005, when the filing period for such a petition expired. 2 See

generally 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 1113(a). Thereafter,

Appellant filed an unsuccessful PCRA petition in 2006. Appellant filed the

instant petition on June 2, 2011. On March 5, 2014, the PCRA court

dismissed Appellant’s PCRA petition. On April 2, 2014, Appellant filed a

timely notice of appeal.

As noted above, Appellant did not file the instant PCRA petition until

June 2, 2011. Therefore, it was patently untimely because it was not filed

within one year of his judgment of sentence becoming final. See 42

Pa.C.S.A. § 9545(b)(1). Furthermore, Appellant’s brief does not allege that

any of the three exceptions to the PCRA time-bar applies. See

Commonwealth v. Taylor, 933 A.2d 1035, 1039 (Pa. Super. 2007)

(stating, “[t]he PCRA specifically provides that a petitioner raising one of the

____________________________________________ 2 We observe that the 30th day fell on Saturday, February 12, 2005. When computing the 30-day filing period “[if] the last day of any such period shall fall on Saturday or Sunday … such day shall be omitted from the computation.” 1 Pa.C.S.A. § 1908. Therefore, the 30th day for Appellant to file a timely allocatur petition was Monday, February 14, 2005.

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statutory exceptions to the timeliness requirements must affirmatively plead

and prove the exception[]”) (citation omitted), appeal denied, 951 A.2d

1163 (Pa. 2008). We note Appellant’s brief cites to the United States

Supreme Court’s decision in Martinez v. Ryan, 132 S. Ct. 1309 (2012).3

Appellant’s Brief at 12, 16, 20, 28. To the extent this could be construed as

seeking a time-bar exception, this Court has held that Martinez does not

create such an exception. Commonwealth v. Saunders, 60 A.3d 162, 165

(Pa. Super. 2013), appeal denied, 72 A.3d 603 (Pa. 2013), cert. denied,

Saunders v. Pennsylvania, 134 S. Ct. 944 (2014).

Based on the foregoing, we conclude the PCRA court correctly

dismissed Appellant’s PCRA petition as untimely. Accordingly, the PCRA

court’s March 5, 2013 order is affirmed.

Order affirmed.

Judge Lazarus joins the memorandum.

Judge Strassburger files a concurring statement.

____________________________________________ 3 In the PCRA court, Appellant couched Martinez as a time-bar exception under 42 Pa.C.S.A. § 9545(b)(1)(iii), but does not do so on appeal. Appellant’s Amended PCRA Petition, 5/19/12, at 7-8.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/12/2014

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