J-S23030-17 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANTHONY BERNARDLY JONES 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3152 EDA 2016

Appeal from the PCRA Order Dated September 13, 2016

In the Court of Common Pleas of Northampton County 

Criminal Division at No(s): CP-48-CR-0003796-2002

BEFORE: OLSON, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY SOLANO, J.: FILED JUNE 09, 2017

Appellant Anthony Bernardly Jones appeals pro se from the order 

dismissing as untimely his third petition filed pursuant to the Post Conviction 

Relief Act, 42 Pa.C.S. §§ 9541-46. We affirm.

On March 9, 2004, following a jury trial, Appellant was convicted of 

resisting arrest, recklessly endangering another person (REAP), possession 

of a firearm with an altered manufacturer’s number, and two counts of illegal 

possession of a firearm.1 On April 21, 2004, the trial court sentenced 

Appellant to the following terms of incarceration, to be served consecutively: 

16-36 months for REAP; 6-12 months for resisting arrest; and 30-96 months 

for each count of illegal possession of a firearm. The trial court also imposed 

a sentence of 16-48 months’ incarceration for possession of a firearm with 

 

1 18 Pa.C.S. §§ 2705, 5104, 6110.2(a), and 6105(a).
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an altered manufacturer’s number, which was to be served concurrently with 

the other sentences. 

On March 16, 2005, this Court affirmed the judgment of sentence, and 

on November 2, 2005, the Supreme Court of Pennsylvania denied 

Appellant’s petition for allowance of appeal. Commonwealth v. Jones, 

1542 EDA 2004 (Pa. Super. Mar. 16, 2005) (unpublished memorandum), 

appeal denied, 887 A.2d 1240 (Pa. 2005).

On March 13, 2006, Appellant filed his first PCRA petition. The PCRA 

court denied relief, and, after two remands, this Court affirmed the PCRA 

court’s order denying relief. Commonwealth v. Jones, 2 A.3d 650 (Pa. 

Super. 2010). Appellant did not file a petition for allowance of appeal in the 

Supreme Court of Pennsylvania.

On December 28, 2015, Appellant filed a “Motion to Vacate Conviction 

Based on Structural Defects in the Trial Mechanism.” The trial court 

construed this motion as a second PCRA petition and dismissed it as 

untimely on February 22, 2016. Appellant did not file an appeal.

On June 13, 2016, Appellant filed the instant pro se PCRA petition, 

relying on Johnson v. United States, 135 S. Ct. 2551, 2558 (2015) 

(holding that the definition of “violent felony” in the sentencing 

enhancement “residual clause” of the Armed Career Criminal Act of 1984, 18 

U.S.C.A. § 924(e)(2)(B)(ii), was unconstitutionally vague), and Welch v. 

United States, 136 S. Ct. 1257, 1268 (2016) (holding that Johnson
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applied retroactively to cases on collateral review). The PCRA court 

appointed counsel, who filed a Turner/Finley2“no merit” letter and a 

motion to withdraw. 

On August 26, 2016, the PCRA court issued a notice pursuant to 

Pa.R.Crim.P. 907 that stated its intent to dismiss Appellant’s petition without 

a hearing. The PCRA court explained that Johnson applied to the federal 

Armed Career Criminal Act, not to any statute Appellant was convicted of 

violating. Rule 907 Notice, 8/26/16. The PCRA court also found that the 

federal statute at issue in Johnson was not similar to the state statutes at 

issue in Appellant’s case. Id. The PCRA court added: “The remainder of 

[Appellant’s] claims, regarding the discretionary aspects of his sentence, 

remain untimely as addressed in his two previous PCRA filings with this 

[c]ourt.” Id. In the notice, the trial court granted counsel’s motion to 

withdraw. 

On September 8, 2016, Appellant, pro se, filed a “Request for an 

Enlargement of Time Before PCRA is Dismissed to Allow Petitioner to Amend 

Third PCRA Petition.” Appellant sought to add claims that his sentence was 

illegal because (1) the Pennsylvania Board of Probation and Parole had 

 

2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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incorrectly calculated the end date of his maximum sentence,3and (2) 

Appellant was denied the right to counsel at his sentencing hearing. In his 

request, Appellant did not mention any statutory exception to the PCRA’s 

time bar.

On September 13, 2016, the PCRA court issued an order dismissing 

Appellant’s petition. In that order, the court stated that it lacked jurisdiction 

over Appellant’s legality of sentence claims because they were untimely and 

Appellant failed to assert an exception to the PCRA’s time bar. 

On October 6, 2016, Appellant filed a timely notice of appeal. On 

November 2, 2016, Appellant filed a timely Pa.R.A.P. 1925(b) statement of 

matters complained of on appeal, in which he raised only the claims he had 

set forth in his September 8, 2016 request for enlargement of time. On 

November 10, 2016, the PCRA court issued a Pa.R.A.P. 1925(a) statement, 

explaining that the reasons for its dismissal of Appellant’s third PCRA petition 

could be found in its opinion and orders dated August 26, 2016 and 

September 13, 2016.

On appeal, Appellant raises the following issues, as stated in his brief:

 

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 On May 14, 2010, the Board of Probation and Parole granted Appellant 

parole, and informed him that his maximum date was October 15, 2021. On 

December 3, 2010, the Board reaffirmed its May 14 order. On 

December 17, 2010, the Board modified its May 14 and December 3 orders 

“to reflect the correct maximum date” of October 2, 2023. See Request for 

an Enlargement of Time and attachments, 9/8/16. In his brief, Appellant 

notes that there is no court order modifying his sentence and speculates that 

the trial court communicated ex parte with the Board. Appellant’s Brief at 

25. Appellant cites no evidence of this alleged ex parte communication.
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1. (a) Is it the constitutional duty of trial/sentencing court, 

whether requested or not, to assign counsel to assist a 

defendant as a necessary requisite to due process of law; and 

(b) pursuant to Pa.R.Crim. P. 121, is it the duty of the 

trial/sentencing court to obtain on the record an intelligent, 

knowing, voluntary waiver of counsel from a defendant prior to 

allowing him/her to proceed into a trial/sentencing without the 

assistance of counsel?

2. Can a judge unilaterally modify a sentence six (6) years after 

its imposition?

Appellant’s Brief at 2.

The PCRA court dismissed Appellant’s petition as untimely. “This 

Court’s standard of review regarding an order dismissing a petition under 

the PCRA is to determine whether the determination of the PCRA court is 

supported by the evidence of record and is free of legal error.” 

Commonwealth v. Furgess, 149 A.3d 90, 93 (Pa. Super. 2016) (quotation 

marks and citation omitted). In addition:

The timeliness of a post-conviction petition is jurisdictional. 

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 

2013). Generally, a petition for relief under the PCRA, including 

a second or subsequent petition, must be filed within one year of 

the date the judgment is final unless the petition alleges and the 

petitioner proves one of the three exceptions to the time 

limitations for filing the petition set forth in Section 9545(b)(1) 

of the statute. See 42 Pa.C.S. § 9545(b).

Id. at 92 (footnote omitted). 

Appellant’s judgment of sentence became final on January 31, 2006, 

when the ninety-day time period for filing a petition for a writ of certiorari 

with the United States Supreme Court expired. See U.S. Sup. Ct. R. 13 

(requiring that petition for writ of certiorari be filed within 90 days of order 
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denying review by state court of last resort); 42 Pa.C.S. § 9545(b)(3) 

(explaining that “a judgment becomes final at the conclusion of direct 

review, including discretionary review in the Supreme Court of the United 

States and the Supreme Court of Pennsylvania, or at the expiration of time 

for seeking the review”). Appellant’s present petition was not filed until 

June 13, 2016, nine and one-half years after the PCRA’s one-year filing 

deadline. Appellant did not assert a statutory exception to the PCRA’s time 

bar in his PCRA petition or in his response to the PCRA court’s Rule 907 

notice. Therefore, the PCRA court properly dismissed Appellant’s petition for 

lack of jurisdiction. See Furgess, 149 A.3d at 92-93.

In his brief, Appellant argues, “Pennsylvania Courts have permitted 

allegations of miscarriage of justice to override the waiver provisions of the 

PCRA and have therefore reached the merits of such claims in successive 

petitions.” Appellant’s Brief at 20 (citing Commonwealth v. Allen, 732 

A.2d 582 (Pa. 1999); Commonwealth v. Reese, 663 A.2d 206 (Pa. Super. 

1995); Commonwealth v. Williams, 660 A.2d 614 (Pa. Super. 1995), 

appeal denied, 674 A.2d 1071 (Pa. 1996)). Appellant’s “miscarriage of 

justice” argument is misplaced. This Court has explained:

[T]he courts of Pennsylvania will only entertain a “miscarriage of 

justice” claim when the initial timeliness requirement is met. See 

Commonwealth v. Fahy, 558 Pa. 313, 330–331, 737 A.2d 214, 

223 (1999), cert. denied, 534 U.S. 944, 122 S. Ct. 323, 151 L. 

Ed. 2d 241 (2001). Although the courts will review the request 

in a second or subsequent collateral attack on a conviction if 

there is a strong prima facie showing that a miscarriage of 

justice occurred, Commonwealth v. Morales, 549 Pa. 400, 
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409–410, 701 A.2d 516, 520–521 (1997), there is no 

“miscarriage of justice” standard exception to the time 

requirements of the PCRA. Fahy, 558 Pa. at 331, 737 A.2d at 

223. 

Commonwealth v. Burton, 936 A.2d 521, 527 (Pa. Super. 2007), appeal 

denied, 959 A.2d 927 (Pa. 2008). Because Appellant has not satisfied the 

timeliness requirement, we may not entertain an miscarriage of justice 

claim.

In his reply brief, Appellant adds that the PCRA court erred by 

dismissing his petition because, “until this current date, Appellant has not 

had the opportunity to ‘prove’ before the PCRA court that any of his 

allegations could meet the PCRA timeliness exceptions.” Appellant’s Reply 

Brief at 3-4. Appellant appears to argue that the PCRA court did not allow 

him to amend his petition, and therefore that he did not have the 

opportunity to invoke an exception to the time bar. 

It was Appellant’s obligation to plead in his petition that one of the 

three statutory exceptions applied. See Commonwealth v. Derrickson, 

923 A.2d 466, 468-69 (Pa. Super.), appeal denied, 934 A.2d 72 (Pa. 

2007). In response to the PCRA court’s Rule 907 notice, Appellant could 

have sought to amend his petition to allege a time-bar exception. See id. at 

469. He did not. While Appellant did seek leave to amend his petition, he 

did not mention any statutory exception to the PCRA’s time bar when he did 

so. Because Appellant did not satisfy his pleading obligations, the PCRA 
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court properly held that it lacked jurisdiction over Appellant’s untimely third 

PCRA petition. See id. at 468-69.

Based on the foregoing, we affirm the PCRA court’s order denying 

Appellant post-conviction relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/9/2017