J-S46003-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
CHRISTINA JOAN ASHTON
Appellant No. 461 MDA 2017
Appeal from the PCRA Order July 3, 2012
In the Court of Common Pleas of Huntingdon County
Criminal Division at No(s): CP-31-CR-0000029-2002
BEFORE: BOWES, J., OLSON, J., AND STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 21, 2017
Christina Joan Ashton appeals from the July 3, 2012 order denying her
PCRA petition. We quash.
The following facts underlie this matter. On December 19, 2001,
Appellant shot and killed her then-fiancé, Darin Whitsel. Following trial, a
jury found her guilty of one count of third-degree murder. Thereafter,
Appellant was sentenced to seventeen to forty years incarceration. This
Court affirmed her judgment of sentence, Commonwealth v. Ashton, 850
A.2d 3 (Pa.Super. 2004) (unpublished memorandum), and on January 19,
2005, the Supreme Court denied Appellant’s petition for allowance of appeal.
Commonwealth v. Ashton, 868 A.2d 1196 (Pa. 2005).
* Former Justice specially assigned to the Superior Court.
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On March 29, 2006, Appellant filed her first PCRA petition. Appointed
counsel filed an amended PCRA petition on June 22, 2007, and a hearing on
the matter was held on that same day. After a series of delays, and the
substitution of the Attorney General’s office on behalf of the Commonwealth,
a second PCRA hearing was held on March 9, 2012. By order dated July 3,
2012, the court denied Appellant’s PCRA petition. Appellant filed a timely
notice of appeal and a Rule 1925(b) concise statement of errors complained
of on appeal. The PCRA court authored a Rule 1925(a) opinion. Thereafter,
counsel neglected to file an advocate’s brief, and thus, on February 9, 2013,
we remanded the matter for a determination as to whether counsel had
abandoned Appellant. Subsequently, on August 12, 2013, we dismissed
Appellant’s appeal finding that she had failed to file a brief.
On October 19, 2015, Appellant filed a pro se PCRA petition alleging, in
part, that PCRA counsel was ineffective for failing to file an appellate brief.
Counsel was again appointed. On November 18, 2016, current counsel filed
an amended PCRA petition seeking, inter alia, reinstatement of Appellant’s
appeal rights nunc pro tunc. The PCRA court granted relief only as to
Appellant’s right to pursue her appeal of the July 3, 2012 denial of PCRA
relief. On March 15, 2017, Appellant filed the present notice of appeal nunc
pro tunc from the July 3, 2012 PCRA order.
Appellant raises two questions for our consideration:
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1. Whether Trial Counsel’s failure to properly investigate or
utilize a qualified expert witness amounts to ineffective
assistance of counsel?
2. Whether Trial Counsel’s failure to request the adverse
inference jury instruction, or have a properly colloquy
conducted, regarding [Appellant] not testifying, amounts to
ineffective assistance of counsel?
Appellant’s brief at 2.
As a preliminary matter, we must determine whether this appeal of
the July 3, 2012 order is properly before us. It is well-settled that a PCRA
petition, including a second or subsequent petition, must be filed within one
year of the date that a defendant’s judgment of sentence becomes final,
unless an exception to this one-year time bar applies. 42 Pa.C.S. §
9545(b)(1). The statutory time-bar is jurisdictional in nature, and thus, if a
PCRA petition is untimely, “neither this Court nor the trial court has
jurisdiction over the petition.” Commonwealth v. Miller, 102 A.3d 988,
992 (Pa.Super. 2014) (citation omitted). While the parties did not question
the timeliness of Appellant’s second PCRA petition, and the PCRA court
overlooked the problem, we must raise the issue sua sponte.
Commonwealth v. Gaines, 127 A.3d 15, 17 (Pa.Super. 2015) (en banc).
Whether a PCRA petition is timely is a question of law, and thus, our
standard of review is de novo, and our scope of review is plenary.
Commonwealth v. Hudson, 156 A.3d 1194, 1197 (Pa.Super. 2017).
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When a PCRA petition is facially untimely, the petitioner must plead
and prove that one of the statutory exceptions applies. Id. If no exception
applies, then the petition must be dismissed, as we cannot consider the
merits of the appeal. Id. The PCRA reads, in relevant part:
(b) Time for filing petition.-
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of
the date the judgment of sentence becomes final,
unless the petition alleges and the petitioner proves
that:
i. the failure to raise the claim previously was the
result of interference by the government officials
with the presentation of the claim in violation of the
Constitution or law of the United States;
ii. 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; or
iii. the right asserted is a constitutional right that was
recognized by the Supreme Court of the United
States or the Supreme Court of Pennsylvania after
the time period provided in this section and has been
held by that court to apply retroactively.
(2) Any petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the date
the claim could have been presented.
42 Pa.C.S. § 9545(b)(1) and (2).
Instantly, the Pennsylvania Supreme Court denied Appellant’s petition
for allowance of appeal on January 19, 2005. Thus, the judgment of
sentence became final on April 19, 2005, when her time to file a petition for
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writ of certiorari with the United States Supreme Court expired. As such,
Appellant had one year from that date, that is, until April 19, 2006, to file a
timely PCRA petition. Since Appellant did not file her second PCRA petition
until October 19, 2015, it was facially untimely, and the PCRA court lacked
jurisdiction over Appellant’s second PCRA petition unless she pled and
proved one of the statutory exceptions to the time bar.
However, Appellant did not raise any of the statutory exceptions in her
second PCRA petition. Therefore, the PCRA court lacked jurisdiction to grant
Appellant nunc pro tunc relief. See Commonwealth v. Robinson, 837
A.2d 1157 (Pa. 2003) (dismissing serial PCRA petition granting relief to file
notice of appeal nunc pro tunc as untimely); Compare Commonwealth v.
Bennett, 930 A.2d 1264 (Pa. 2007) (finding petitioner’s subsequent PCRA
petition requesting nunc pro tunc relief pled and proved exception to
statutory time bar under 42 Pa.C.S. § 9545(b)(1)(ii)). Since the PCRA court
did not have jurisdiction to grant Appellant’s request to reinstate her appeal
rights nunc pro tunc, this matter is not properly before us. Accordingly, we
quash this appeal.
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Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2017
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