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### -S41027-19 NON-PRECEDENTIAL DECISION - SEE 

### SUPERIOR COURT 

### I.O.P. 

### 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
TAHIJ A. JOHNSON 

### Appellant : No. 193 MDA2019 Appeal 

### from the PCRA Order Entered January 4, 2019 In theCourt of Common Pleas 

### of Luzerne County Criminal Division at No(s): CP-40-CR-0000899-2013 BEFORE: LAZARUS, J., MURRAY, J., and STRASSBURGER*, J. MEMORANDUM BY MURRAY, J.: 

### FILED JULY

### 31, 2019 Tahij A. Johnson 

### (Appellant) appeals

### fromtheorderdenying as 

### untimely his 

### petition filed 

### pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 

### 9541-9546. In 

### this appeal, 

### Appellant's court-appointed counsel (PCRA Appellate Counsel) filed a 

### petition to 

### withdraw as counsel and a no- 

### merit letter pursuant to 

### Commonwealth v. 

### Turner, 544 A.2d 927 (Pa. 

### 1988), and 

### Commonwealth v. 

### Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). Because we conclude 

### that PCRA 

### Appellate Counsel 

### fulfilled the procedural 

### requirements of

### Turner/Finley, and his 

### petition is 

### untimely, we 

### affirm the PCRA 

### court's order denying 

### Appellant's PCRA 

### petition and 

### grant PCRA

### Appellate Counsel's 

### petition to 

### withdraw. On April 9, 2014, a 

### jury found 

### Appellant 

### guilty of aggravated assault, simpleassault, and resisting arrest. On May9, 2014, the

### trialcourtsentenced 

### Appellant to 7 to 14years of incarceration, followed by 2 

### years of 

### probation. 

### * Retired SeniorJudge assigned to the Superior Court.J

### -S41027-19
On May 19, 2014, 

### Appellant filed post-sentence motions, whichthe 

### trial court denied on May 29, 2014. 

### Appellant

### timely appealed to 

### this Court. On 

### September 8, 2015, this Court 

### affirmed Appellant's 

### judgment of sentence. 

### See 

### Commonwealth v. 

### Johnson, 1334 MDA 2014 (Pa. Super. Sept. 8, 

### 2015) (unpublished 

### memorandum). Approximately 19 

### months later,
on April 11, 2017, 

### Appellant filed a 

### "Petition For Leave To File Petition For Allowance OfAppeal Nunc Pro

### Tunc[,]" which the Supreme Court denied on June 22, 2017. On 

### September 17, 2018, 

### Appellant filed a 

### pro se PCRA 

### petition. The PCRA 

### court appointed counsel and on December 3, 2018, 

### Appellant's counsel filed a 

### motion to 

### withdraw as counsel and a no

### -merit letter pursuant to 

### Turner/Finley. On January 4, 2019, the PCRA 

### court held a hearing on 

### Appellant's PCRA 

### petition. The same day, the PCRA 

### court issued orders denying 

### Appellant's PCRA 

### petition as 

### untimely and 

### granting counsel's 

### motion to 

### withdraw. OnJanuary31, 2019, the PCRA

### court appointed PCRA

### Appellate Counsel to 

### representAppellant 

### forthis appeal. The same day,

### Appellant filed a notice of appeal 

### from the order denying his PCRA 

### petition as 

### untimely. Both the PCRA 

### court and 

### Appellant have complied 

### with Pa.R.A.P. 1925. On June 3, 2019 PCRA 

### Appellate Counsel filed a 

### petition to 

### withdraw with this Court, 

### attaching a 

### Turner/Finley no

### -merit brief, with notice to 

### Appellant 

### that he had the 

### right to proceed 

### pro se or retain 

### private counsel. 

## -2J

### -S41027-19 Accordingly, we 

### must determine if PCRA Counsel has satisfied the 

### requirements to be 

### permitted to

### withdraw from 

### further representation. Pursuant to 

### Turner/Finley, an 

### "[i]ndependent review ofthe record by 

### competent counsel is required before 

### withdrawal [on 

### collateral review] is 

### permitted." 

### Commonwealth v. 

### Pitts, 981 A.2d 875, 876 n.1 (Pa. 

### 2009). In 

### Pitts, our Supreme Court explained 

### that independent review requires 

### proof of: 1. A

### "no 

### merit" letter by PC[R]A counsel detailing the nature and 

### extentof his 

### review; 2. The 

### "no 

### merit" letter by PC[R]A counsel listing each issue the 

### petitionerwished to have 

### reviewed; 3. The PC[R]A counsel's

### "explanation", in 

### the"no 

### merit" letter, of why the 

### petitioner's issueswere 

### meritless; 4. The PC[R]A

### courtconducting its own 

### independent reviewofthe record; and 5. The PC[R]A 

### court agreeing 

### with counsel 

### that the 

### petition was 

### meritless. 

### Id. (citation and brackets 

### omitted). Additionally: Counsel 

### must also send to the 

### petitioner: (1) a copy of

### the "no- 

### merit" letter/brief; (2) a copy of counsel's 

### petition to 

### withdraw; and (3) a 

### statementadvising 

### petitionerofthe 

### rightto proceed 

### pro se or by new counsel. 

### If counsel fails to 

### satisfy the foregoing technical prerequisites of 

### Turner/Finley, the court will not reach the 

### merits of the underlying claims but, 

### rather, will 

### merely deny counsel's request to 

### withdraw. Upon doing so, the 

### court will then take 

### appropriate steps, such as 

### directing counsel to file a 

### proper 

### Turner/Finley request or an advocate's brief.

## -3J

### -S41027-19
However, where counsel 

### submits a 

### petition and no

### -merit letter 

### that do 

### satisfy the technical demands of 

### Turner/Finley, the 

### [court] mustthenconduct its own review ofthe 

### merits ofthe case. 

### Ifthe 

### court agrees

### with counsel

### thatthe claims are

### without merit, the 

### courtwill 

### permit counsel to 

### withdraw and deny relief. 

### Commonwealth v. 

### Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) 

### (citations 

### omitted). Here, PCRA 

### Appellate Counsel filed a no

### -merit brief and 

### petition to 

### withdraw 

### thatstate the nature and 

### extent of his review of

### the case; he listed the issues 

### for which 

### Appellant sought review, explained 

### why and how 

### Appellant's claims lack 

### merit, and requested permission to 

### withdraw. See 

### Turner/Finley Brief, 

### 6/3/19; Petition to

### Withdraw as Counsel, 

### 6/3/19. PCRA 

### Appellate Counsel also sent 

### Appellant a copy 

### ofthe no

### -merit brief, a copy of the petition to 

### withdraw, and a 

### statement advising 

### Appellant of the 

### right to proceed 

### pro se or by 

### privately retained counsel. Thus, the record reflects

### that PCRA Counsel 

### submitted a 

### petition to

### withdraw and no

### -merit brief

### thatsatisfy the technical demands of 

### Turner/Finley. We now 

### turn to our review of Appellant's claimsto ascertain 

### whether he is 

### entitled to relief. Prior to 

### determining the 

### merits of 

### Appellant's appeal, we 

### must determine 

### whether we have

### jurisdiction to decide his claims. 

### "Pennsylvania law makes clear no 

### court has

### jurisdiction to hear an 

### untimely PCRA 

### petition." 

### Commonwealth v. 

### Monaco, 996 A.2d 1076, 1079 (Pa. Super. 

### 2010) (quoting 

### Commonwealth v. 

### Robinson, 837 A.2d 1157, 1161 (Pa. 

### 2003)).


## -4J

### -S41027-19

A 

### petitioner must file a PCRA 

### petition within one 

### year of the date on which the 

### petitioner's 

### judgment became 

### final, unless one of the 

### three 

### statutory exceptionsapplies: (i) the 

### failure to raise the claim previously was the result of 

### interference by 

### government officials 

### with the presentation ofthe claim in

### violation ofthe

### Constitutionor lawsof

### this Commonwealth orthe 

### Constitution or laws 

### ofthe United 

### States; (ii) the facts upon which

### the claim is predicated were unknown to the 

### petitionerand could not have been ascertained bytheexercise ofdue 

### diligence; or 

### (iii) the 

### rightasserted is a

### constitutional right

### thatwas recognized bythe Supreme Court ofthe United States or the Supreme Court of Pennsylvania

### after the 

### time period provided in 

### this section and has been held by

### thatcourt to 

### apply retroactively. 42 Pa.C.S.A. § 

### 9545(b)(1). A 

### petitioner must file a 

### petition invoking one of these exceptions 

### "within 60 days of the date 

### the claim could have been 

### presented." 42 Pa.C.S.A. § 

### 9545(b)(2).1 

### If a 

### petition is 

### untimely, and the 

### petitioner has not pled and proven any 

### exception,

### "neitherthis Court nor the 

### trial court has

### jurisdiction over the petition. 

### Without

### jurisdiction, we 

### simply do not have the legal 

### authority to address the 

### substantive 

### claims.' Commonwealth v. 

### Derrickson, 923 A.2d 

### 466, 468 (Pa. Super. 

### 2007) (quoting 

### Commonwealth v. 

### Chester, 895 A.2d 520, 522 (Pa. 

### 2006)).

1 We note

### thatAct 146 

### of2018 amended 42 Pa.C.S.A. 

### §9545(b)(2), effective December 24, 2018, and now provides 

### that a PCRA 

### petition invoking a 

### timeliness exception must be filed 

### within one

### year of the date the claim could have been presented. This 

### amendment has no 

### effect on our disposition.

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### -S41027-19
In this case, the 

### trial court sentenced 

### Appellant on May 9, 2014. This Court affirmed Appellant's

### judgmentofsentenceon 

### September8, 2015. 

### See 

### Johnson, 1334 MDA 2014. 

### Appellant had 30 days 

### from the date of the Superior Court's order, or October 8, 2015, to file a 

### petition for allowance of appeal

### withthe Supreme Court. 

### See Pa.R.A.P. 

### 1113(a) ("Exceptas

### otherwise prescribed by 

### this rule, a 

### petition for allowance of appeal shall be filed 

### with the 

### Prothonotary of the Supreme 

### Court 

### within 30 days 

### after the 

### entry of the orderofthe 

### SuperiorCourt

. . . 

### soughtto be 

### reviewed."). Appellant, however, did not file a 

### petition for allowance of appeal 

### until April 11, 2017, well 

### after the 30

### -day period 

### for filing a 

### petition for allowance of appeal. Thus, 

### notwithstanding his 

### untimely filed 

### "Petition For Leave To File Petition For Allowance Of Appeal Nunc Pro 

### Tunc[,]" Appellant's 

### judgment of sentence became final on October 8, 2015. 

### See 42 Pa.C.S.A. § 

### 9545(b)(3) (stating 

### that a

### judgmentofsentencebecomes final

### "attheconclusion of

### direct review, including 

### discretionary review in the Supreme Court ofthe United States and the Supreme Court of Pennsylvania, 

### or 

### at the expiration of time 

### for seeking 

### the review"). As explained above, 

### Appellant had one

### year 

## - until Monday, October 10, 20162 

## - to file a 

### timely PCRA 

### petition. Accordingly, Appellant's PCRA 

### petition, which hefiled on 

### September 17, 2018, is 

### untimely,

2 October 8, 2016 was a 

### Saturday. 

### See 1 Pa.C.S.A. § 1908 

### ("Whenever the last day of any such period shall fall on 

### Saturday or Sunday,

. . . such day shall be 

### omitted fromthe 

### computation.").

- 6 -J

### -S41027-19
and we lack

### jurisdictionto decide

### Appellant's appeal unless he pled and proved one 

### of the 

### three timeliness exceptions of section 

### 9545(b)(1). See 

### Derrickson, 923 A.2d at 468. 

### Appellant did not 

### attempt to plead or prove any of 

### the timeliness exceptions of Section 

### 9545(b)(1) in his PCRA 

### petition. See PCRA Petition, 

### 9/17/18. As 

### Appellant has failed to plead and prove an exception under section 

### 9545(b)(1), we are 

### withoutjurisdiction to address the 

### merits of his appeal. 

### See 

### id. For these reasons, we agree 

### with the PCRA 

### court and PCRA Appellate Counsel 

### that there are no 

### meritorious issues 

### that Appellant could pursue on 

### collateral review, and 

### affirm the 

### orderdismissing his PCRA 

### petition. Order

### affirmed. Petition to

### withdraw granted.
Judgment Entered.

J seph D. 

### Seletyn, Prothonotary Date: 

### 7/31/2019



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