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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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A.2d 3 (Pa.Super. 2004) (unpublished memorandum), and on January 19,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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