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[U] Commonwealth v. Ashford

Superior Court of Pennsylvania

February 25, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
KENNETH WINSTON ASHFORD Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order August 29, 2013 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0002459-1991

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

MEMORANDUM

MUNDY, J.

Appellant, Kenneth Winston Ashford, appeals pro se from the August 29, 2013 order dismissing his sixth 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 July 17, 1992, a jury found Appellant guilty of two counts each of driving under the influence of alcohol (DUI), receiving stolen property, and burglary.[1] On November 4, 1992, the trial court imposed an aggregate sentence of 10¼ to 33 years' imprisonment. Appellant filed a timely notice of appeal and this Court affirmed the judgment of sentence on June 15, 1993. Commonwealth v. Ashford, 631 A.2d 1365 (Pa.Super. 1993) (unpublished memorandum), appeal denied, 639 A.2d 22 (Pa. 1994). Our Supreme Court denied Appellant's petition for allowance of appeal on February 8, 1994. Appellant did not file a petition for a writ of certiorari in the United States Supreme Court. Since that time, Appellant filed a total of five PCRA petitions, one each in 1994, 1997, 2001, 2006, and 2011, none of which were successful.

On June 28, 2013, Appellant filed his sixth PCRA petition. The Commonwealth filed its answer on August 2, 2013. The PCRA court entered an order on August 14, 2013, giving Appellant notice of its intent to dismiss his sixth PCRA petition without a hearing pursuant to Pennsylvania Rule of Criminal Procedure 907. Appellant filed a timely response to the Rule 907 notice on August 23, 2013. On August 29, 2013, the PCRA court entered an order dismissing Appellant's sixth PCRA petition. On September 11, 2013, Appellant filed a timely notice of appeal.[2]

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

A. Whether [the PCRA] court was proper in denying Appellant's PCRA petition without appointing counsel after Appellant asserted ineffective assistance of counsel[?]
B. Whether trial counsel [provided] ineffective assistance … for not calling an expert witness to rebut the Commonwealth's expert witness[?]
C. Whether trial counsel [provided] ineffective assistance of counsel for not investigating Det[ective] Dennis Arnold's report[?]
D. Whether direct appeal counsel … and initial [PCRA counsel provided] ineffective assistance of counsel's [sic] for not pursuing trial counsel['s] … refusal to call an expert witness and investigate [Detective] … Arnold's report[?]
E. Whether [Appellant's] underlying ineffective assistance of trial counsel claim is substantial, and whether [Appellant] was prejudice[?]
F. Whether a procedural default voids [an] actual innocence claim[?]

Appellant's Brief at 7.

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 November 4, 1992, this Court affirmed the judgment of sentence on June 15, 1993, and our Supreme Court denied Appellant's allocator petition on February 8, 1994. As Appellant did not seek further review in the United States Supreme Court, his judgment of sentence became final when the time to file a petition for a writ of certiorari expired, on May 9, 1994. 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[]"); U.S. Sup. Ct. R. 13(1). As Appellant did not file the instant petition until June 28, 2013, it was patently untimely.[3]

In his brief, Appellant does not aver that any one of the three time-bar exceptions apply. To the extent the citations in Appellant's brief to the United States Supreme Court's decision in Martinez v. Ryan, 132 S.Ct. 1309 (2012), can be read as arguing an exception, we note Appellant did not raise Martinez in his PCRA petition below. As a result, any argument regarding Martinez is waived. See Commonwealth v. Taylor, 933 A.2d 1035, 1039 (Pa.Super. 2007) (stating, "[t]he PCRA specifically provides that a petitioner raising one of the statutory exceptions to the timeliness requirements must affirmatively plead and prove the exception[]") (citation omitted), appeal denied, 951 A.2d 1163 (Pa. 2008). However, even if it was not waived, this Court recently held that Martinez does not create an exception to the PCRA time-bar.

Martinez recognizes that for purposes of federal habeas corpus relief, "[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance of trial counsel." Martinez, supra at 1315. While Martinez represents a significant development in federal habeas corpus law, it is of no moment with respect to the way Pennsylvania courts apply the plain language of the time bar set forth in section 9545(b)(1) of the PCRA.

Commonwealth v. Saunders, 60 A.3d 162, 165 (Pa.Super. 2013), appeal denied, 72 A.3d 603 (Pa. 2013), cert. denied, Saunders v. Pennsylvania, __U.S. __, 2014 WL 102781 (2014). As Appellant has not argued nor proven that a time-bar exception applies in this case, the PCRA court was without jurisdiction to consider his sixth PCRA petition. See Williams, supra.

Based on the foregoing, we conclude the PCRA court properly dismissed Appellant's sixth PCRA petition as untimely. Accordingly, the PCRA court's August 29, 2013 order is affirmed.

Order affirmed.

Judgment Entered.


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