Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

[U] Commonwealth v. Ashford

Superior Court of Pennsylvania

February 24, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
KENNETH WINSTON ASHFORD, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order May 22, 2013 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0002467-2008.

BEFORE: MUNDY, J., OLSON, J., and STABILE, J.

MEMORANDUM

MUNDY, J.

Appellant, Kenneth Winston Ashford, appeals pro se from the May 22, 2013 order dismissing his first petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

We summarize the relevant facts and procedural history of this case as follows. On May 12, 2009, a jury found Appellant guilty of one count each of attempted burglary, criminal trespass, attempted criminal trespass, possession of an instrument of a crime (PIC), institutional vandalism, and criminal mischief.[1] On July 6, 2009, the trial court imposed an aggregate sentence of five and one-half to 11 years' imprisonment.[2] Appellant filed a timely notice of appeal. On June 23, 2010, this Court entered an order sua sponte dismissing the appeal due to Appellant's failure to file a brief. On June 30, 2010, Appellant filed an application to reinstate the appeal, which was denied by this Court on July 19, 2010. On August 19, 2010, Appellant filed a second application to reinstate the appeal which was denied on September 2, 2010. Our Supreme Court denied Appellant's petition to file a petition for allowance of appeal nunc pro tunc on February 10, 2011. Supreme Court Order, 2/10/11, 192 MM 2010, at 1.

On January 6, 2012, Appellant filed a pro se motion for credit for time served. The trial court entered an order denying this motion on February 15, 2012. Appellant filed a notice of appeal, and this Court affirmed on March 19, 2013. Commonwealth v. Ashford, 69 A.3d 1296 (Pa.Super. 2013) (unpublished memorandum). However, Appellant also filed a "Request to Correct Illegal Sentence" on March 5, 2012, which the trial court had held in abeyance. In its March 19, 2013 memorandum decision, this Court deemed that said motion was a PCRA petition and instructed the Court of Common Pleas to treat it as such and appoint counsel pursuant to Pennsylvania Rule of Criminal Procedure 904. Id. at 9 n.6.

On March 22, 2013, the PCRA court entered an order appointing Christopher J. Moore, Esquire (Attorney Moore) to serve as PCRA counsel. The PCRA court's order also directed that Attorney Moore's amended petition should address the timeliness of the original pro se petition. Despite being represented by counsel, Appellant filed a pro se amended PCRA petition on April 23, 2013. On April 29, 2013, Attorney Moore filed a motion for an extension of time to file a counseled amended PCRA petition, which the PCRA court granted on May 15, 2013, giving Attorney Moore until May 20, 2013 to file said petition. However, no such amended petition was filed. On May 22, 2013, the PCRA court conducted a hearing limited to the timeliness of the original PCRA petition, at the conclusion of which the PCRA court entered an order dismissing the PCRA petition as untimely. On May 30, 2013, Attorney Moore filed a motion to withdraw as counsel, which the PCRA court granted on June 3, 2013.[3] On June 7, 2013, Appellant filed a timely pro se notice of appeal.[4]

On appeal, Appellant raises the following ten issues for our review.

A. Whether [the PCRA] court was defiant for denying Appellant's PCRA petition as untimely, after the Superior Court had issued an order to treat petition as held in abeyance, which invokes an illegal sentence to be Appellant's first PCRA petition and appoint counsel[?]
B. Whether [the PCRA] court order appointing counsel to amend [Appellant's pro se] PCRA petition [has] been enforced with new counsel appointed[?]
C. Whether [the Superior Court] should now hear and rule on the claims and or issues they order[ed] the [PCRA] court to comply with, and hear and rule on other issues and claims presented[?]
D. Whether the evidence presented at trial was sufficient to support Appellant's conviction for attempted burglary and related charges and whether the verdict was against the weight of the evidence[?]
E. Whether the trial court erred in sentencing Appellant on both the charges of attempted burglary and [PIC?]
F. Whether trial counsel was ineffective for not objecting to the authenticity or the alterations of the V.H.S. surveillance tape and the DVD version of the attempted break[-]in of the York County Courthouse, and the missing exculpatory evidence[?]
G. Whether trial counsel was ineffective for not objecting that [] Appellant had not been brought [to] trial within 365 days[?]
H. Whether Appellant was tried by a fair and impartial jury[?]
I. Whether the Commonwealth had established a chain of custody with the V.H.S. Surveillance tape or the DVD version of the attempted break[-]in of the York County Courthouse[?]
J. Whether the trial court erred by instructing [the] jury that there is evidence missing, and allowing [] Appellant to represent himself at sentencing, [PCRA] proceeding[s], and direct appeal without assistance of counsel[?]

Appellant's Brief at 7-8.

We begin by noting our well-settled standard of review. "On appeal from the denial of PCRA relief, our standard and scope of review is limited to determining whether the PCRA court's findings are supported by the record and without legal error." Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied, Edmiston v. Pennsylvania, 134 S.Ct. 639 (2013). "[Our] scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the PCRA court level." Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation omitted). "The PCRA court's credibility determinations, when supported by the record, are binding on this Court." Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citation omitted). "However, this Court applies a de novo standard of review to the PCRA court's legal conclusions." Id.

Before we may address the merits of Appellant's claims, we must first consider the timeliness of his PCRA petition because it implicates the jurisdiction of this Court and the PCRA court. Commonwealth v. Williams, 35 A.3d 44, 52 (Pa.Super. 2011) (citation omitted), appeal denied, 50 A.3d 121 (Pa. 2012). "Pennsylvania law makes clear no court has jurisdiction to hear an untimely PCRA petition." Id. The PCRA "confers no authority upon this Court to fashion ad hoc equitable exceptions to the PCRA time-bar[.]" Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011) (citation omitted). This is to "accord finality to the collateral review process." Id. "A petition for relief under the PCRA, including a second or subsequent petition, must be filed within one year of the date the judgment becomes final unless the petition alleges, and the petitioner proves, that an exception to the time for filing the petition, set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is met." Commonwealth v. Harris, 972 A.2d 1196, 1199-1200 (Pa.Super. 2009), appeal denied, 982 A.2d 1127 (Pa. 2009). The act provides, in relevant part, as follows.

§ 9545. Jurisdiction and proceedings

(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 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 government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws 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.A. § 9545(b).

In the case sub judice, Appellant was sentenced on July 6, 2009. This Court dismissed his appeal on June 23, 2010. Therefore, Appellant's judgment of sentence became final on July 23, 2010, when the time for Appellant to file a petition for allowance of appeal in our Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3) (stating, "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[]"); Pa.R.A.P. 1113(a) (stating, "a petition for allowance of appeal shall be filed with the Prothonotary of the Supreme Court within 30 days after the entry of the order of the Superior Court … sought to be reviewed[]"). Therefore, Appellant had until July 23, 2011 to timely file a PCRA petition. As Appellant did not file the instant petition until March 5, 2012, it was untimely filed.

In addition, we have reviewed Appellant's brief. To the best we can discern his arguments on appeal, Appellant does not argue that any of the three enumerated time-bar exceptions applies.[5] Therefore, we conclude that the PCRA court properly dismissed Appellant's petition as untimely.

Based on the foregoing, we conclude the PCRA court correctly determined that Appellant's PCRA petition was untimely filed and as such it lacked jurisdiction to consider his claims. See Edmiston, supra. Accordingly, the PCRA court's May 22, 2013 order is affirmed.

Order affirmed.

Judgment Entered.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.