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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

PAUL ALEXANDER WADE, III

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 470 WDA 2023

Appeal from the PCRA Order Entered January 24, 2017

In the Court of Common Pleas of Lawrence County Criminal Division at

No(s): CP

- 37

- CR

- 0001247

- 2006

BEFORE: BENDER, P.J.E., McCAFFERY, J., and STEVENS, P.J.E. *

MEMORANDUM BY STEVENS, P.J.E.: FILED: November 3, 2023

Appellant Alexander Paul Wade

, III appeals from the PCRA court’s order

of January 24, 2017 in the Lawrence County Court of Common Pleas. We find

that the trial court did not have the juri sdiction under the PCRA to reinstate

Appellant’s appeal rights nunc pro tunc leading to this appeal. Thus, we vacate

the March 31 , 2023

, Order reinstating Appellant’s rights nunc pro tunc , and

we dismiss this appeal.

The facts and procedural history are as follows: After a bar fight in which

Appellant injured five people, causing two to be life flighted, he was found

guilty by a jury of two counts of criminal attempt to commit criminal homicide,

five counts of aggravat ed assault

, and five counts of simple assault. On May

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.J

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25, 2010, Appellant was sentenced to a term of incarceration for thirty to sixty

years. N.T., 5/25/10, at 22.

On October 8, 2010, Appellant filed a notice of appeal to this Court. On

May 27, 2011, A ppe llant filed a pro se PCRA motion which was denied on June

1, 2011 because the appeal was pending. On September 23, 2011, th e

Superior Court affirmed Appellant's judgment of sentence. On Jun e 13, 2012,

our Supreme Court denied Appellant's petition for allow ance of appeal.

Appellant did not seek discretionary review by the Supreme Court of the

United States. As such, Appellant's judgment of sentence became final on

September 13, 201 2

. 1

On June 10, 2013, Appellant filed a timely pro se PCRA petition, claiming

ineffectiveness of trial counsel for failure to present mitigating evidence at

sentencing

. Almon Burke, Esq. was appointed on June 17, 2 012, and

subsequently filed an amended PCRA petition on January 28, 2016. 2 A brief in

support o f the amended petition was filed on January 29, 2016. The PCR A

court held evidentiary hearings on April 29, 2016, July 8, 2016, and December

2, 2016. On January 24, 2017, the PCRA court issued an order of court and

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1 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 the time for seeking the review ” )

.

2 “Numerous continuances for different reasons delayed proceedings in the

case until January 26, 201 6

. ” Tr. Ct. Op. at 7.J

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opinion which denied A ppellant ’ s PCRA pet ition on all claims raised. No timely

appeal was filed.

Although still represented by Attorney Burke, Appellant filed another pro

se PCRA petition nunc pro tunc and a pro se notice of appeal on August 9,

2017

, and August 14, 2017, respectively. On August 23, 2017, the trial court

issued an order denying the PCRA petition 3 and deeming the notice of appeal

as having no effect for failure to be perfected. For some reason, on July 29,

2022, Appellant filed a brief in support of his pro se petition which had been

denied on August 23, 2017, about five years earlier. The trial court properly

issued an order on August 11, 2022, stating that the filing of the brief had no

effect as the pro se PCRA petition had been dism issed in 2017.

On January 23, 2023, A ppellant filed a subsequent PCRA petition. The

court appointed new PCRA counsel on January 25, 2023. A motion for leave

to file an amended PCRA petition nunc pro tunc was filed on March 15, 2023.

The court granted leave on March 30, 2023. The amended PCRA petition was

filed by cou nse l on March 31, 2023, requesting that the PCRA court restore

A ppellant ’ s right to appeal the denial of his original PCR A petition nunc pro

tunc

. The PCRA court issued an order dated March 31, 2023

, and filed on April

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3 The trial court denied the PCRA petition b ecause an appeal and a PCRA

petition cannot be pursued at the same time. However, this s ubsequent PCRA

petition should have been dismissed for not being filed within the statutory

period according to s ection 9545(b)(1) of the PCRA.J

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3, 2023

, granting PCRA relief nunc pro tunc allowing Appellant thirty days to

appeal the January 24, 2017 order denying his first PCRA petition. Appellant

filed a notice of appeal on April 20, 2023.

Appellant raises the following issue for our review: “ Did the PCRA Court

commit error by denying Appellant relief in the form of resentencing based on

ineffective assistance of trial counsel, because of the failure to present

mitigating evidence? ” Appellant’s Br. at 4.

Before we address this issue, we must determine whether the PCRA

court had jurisdiction to entertain Appellant's January 23, 2023

, PCRA petition

fo r nunc pro tunc relief and to issue the March 31, 2023

, order reinstating

Appellant’s appellate rights

. See Commonwealth v. Reid

, 235 A.3d 1124,

1143 (Pa. 2020) (stating, “it is appropriate for an appellate court to consider

sua sponte the timeliness of a PCRA petition from which nunc pro tunc

appellate rights have been reinstated, even where the Commonwealth has not

separately app ealed (or appeals but then withdraws its appeal) from the order

granting relief”). We conclude that the court did not have jurisdiction.

As discussed supra

, Appellant's judgment of sentence became final on

September 13, 2012. See 42 Pa.C.S.A. § 9545(b)(3) (stating that judgment

becomes final at the end of direct review). Our review of the record shows

that direct review expired on or about September 13, 2012 , ninety days after

the Pennsylvania Supreme Court denied Appellant's petition for allowance ofJ

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appeal and Appellant failed to seek review by the United States Supreme

Court.

Therefore, Appellant had until September 13, 2013

, to file a timely PCRA

petitio n. See 42 Pa.C.S.A. § 9545(b)(1) (stating, a PCRA petition, “including

a second or subsequent petition, shall be filed within one year of the date the

judgment becomes final” unless the petitioner alleges and proves one of the

three enumerated exceptions s et forth herein). Appellant filed pro se his

subsequent PCRA petition seeking reinstatement of his appellate rights on

January 23, 2023, almost a decade after the expiration of time in which to file

a timely PCRA petition. As such, Appellant's PCRA petition was patently

untimely

. See Commonwealth v. Fairiror

, 809 A.2d 396, 391 (Pa.Super.

2002) (holding that, generally, “requests for reinstatement of appellate rights,

including PCRA appellate rights,” are PCRA petitions that “must meet the

timeliness requirements of the PCRA”)

.

If a PCRA petition is untimely filed, the jurisdictional time

- bar can only

be overcome if the petitioner alleges and proves one of the three statutory

exceptions, as set forth in 42 Pa.C.S.A. § 9545(b)(1). Commonwealth v.

Spotz

, 171 A.3d 675, 678 (Pa. 2017). The three narrow statutory exceptions

to the one

- year time

- bar are as follows: “(1) interfe rence by government

officials in the presentation of the claim; (2) newly discovered facts; and (3)

an after

- recognized constitutional right.” Commonwealth v. Brandon

, 51

A.3d 231, 233

- 234 (Pa. Super. 2012) (citing 42 Pa.C.S.A. § 9545(b)(1)(i

- iii)).J

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A peti tion invoking an exception to the jurisdictional time

- bar must be filed

within one year of the date that the claim could have been presented. 42

Pa.C.S.A. § 9545(b)(2). If a petitioner fails to invoke a valid exception to the

PCRA time

- bar, courts are with out jurisdiction to review the petition and

provide relief. Spotz

, 171 A.3d at 676.

Appellant did not raise any of the three timeliness exceptions in his nunc

pro tunc petition. Thus, because Appellant's s ubsequent PCRA petition was

untimely, the PCRA court had no jurisdiction to grant reinstatement of PCRA

appellate rights. See Commonwealth v. Jones , 54 A.3d 14, 16 (Pa. 2012)

(“ The PCRA's timeliness requirements are jurisdictional; therefore, a court

may not addres s the merits of the issues raised if the petition was not timely

filed. The timeliness requirements apply to all PCRA petitions, regardless of

the nature of the individual claims raised therein.”).

We note with displeasure the lack of attention to his client displayed by

Appellant's previous counsel, Attorney Burke, in this case. The court issued

multiple orders directing Attorney Burke to confer with his client to determine

if an appeal should be pu rsued, but Attorney Burke failed to comply. 4 Although

Appellant’s current counsel claimed ineffectiveness of trial counsel in his

amended petition on March 21, 2023, that petition was a nullity because it

was filed almost ten years after Ap pellant’s judgm ent of sentence became

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4 Tr. Ct. Order 3/28/17; Tr. Ct. Order 8/11/2017; Tr. Ct. Order 8/23/2017

.J

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final. Attorney Burke’s failure to pursue a n app eal after the January 24, 2017

PCRA court’s order and opinion “ became an unremediable error, because the

only way to go about correcting that error [would be] to file a [subsequent]

(an d untimely) PCRA petition

. ” Fairiror , 809 A.2d at 399

. “[C]ounsel [] should

be aware that it is a rare case indeed that will proceed so swiftly through our

courts as to allow a timely second PCRA petition. Thus, given the PCRA's time

constraints, it is imperative that counsel file timely PCRA appeals or run the

substanti al risk of having that right lost forever.” Id

.

We, therefore

, vacate the March 31 , 2023

, Order reinstating Appellant’s

rights nunc pro tunc , and we dismiss this appeal.

PCRA court’s March 31 , 2 023

, Or der vacated. Appeal dismissed.

Jurisdiction relinquish ed.

11/3/2023