J-S33034-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : PAUL ALEXANDER WADE, III : : Appellant : 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 jurisdiction 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 aggravated assault, and five counts of simple assault. On May
____________________________________________
* Former Justice specially assigned to the Superior Court. J-S33034-23
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, Appellant filed a pro se PCRA motion which was denied on June
1, 2011 because the appeal was pending. On September 23, 2011, the
Superior Court affirmed Appellant's judgment of sentence. On June 13, 2012,
our Supreme Court denied Appellant's petition for allowance 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, 2012.1
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, 2012, and
subsequently filed an amended PCRA petition on January 28, 2016.2 A brief in
support of the amended petition was filed on January 29, 2016. The PCRA
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
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, 2016.” Tr. Ct. Op. at 7.
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opinion which denied Appellant’s PCRA petition 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 petition3 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 dismissed in 2017.
On January 23, 2023, Appellant 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 counsel on March 31, 2023, requesting that the PCRA court restore
Appellant’s right to appeal the denial of his original PCRA petition nunc pro
tunc. The PCRA court issued an order dated March 31, 2023, and filed on April
3 The trial court denied the PCRA petition because an appeal and a PCRA petition cannot be pursued at the same time. However, this subsequent PCRA petition should have been dismissed for not being filed within the statutory period according to section 9545(b)(1) of the PCRA.
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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
for 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 appealed (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 of
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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
petition. 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 set 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.
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J-S33034-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : PAUL ALEXANDER WADE, III : : Appellant : 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 jurisdiction 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 aggravated assault, and five counts of simple assault. On May
____________________________________________
* Former Justice specially assigned to the Superior Court. J-S33034-23
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, Appellant filed a pro se PCRA motion which was denied on June
1, 2011 because the appeal was pending. On September 23, 2011, the
Superior Court affirmed Appellant's judgment of sentence. On June 13, 2012,
our Supreme Court denied Appellant's petition for allowance 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, 2012.1
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, 2012, and
subsequently filed an amended PCRA petition on January 28, 2016.2 A brief in
support of the amended petition was filed on January 29, 2016. The PCRA
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
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, 2016.” Tr. Ct. Op. at 7.
-2- J-S33034-23
opinion which denied Appellant’s PCRA petition 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 petition3 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 dismissed in 2017.
On January 23, 2023, Appellant 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 counsel on March 31, 2023, requesting that the PCRA court restore
Appellant’s right to appeal the denial of his original PCRA petition nunc pro
tunc. The PCRA court issued an order dated March 31, 2023, and filed on April
3 The trial court denied the PCRA petition because an appeal and a PCRA petition cannot be pursued at the same time. However, this subsequent PCRA petition should have been dismissed for not being filed within the statutory period according to section 9545(b)(1) of the PCRA.
-3- J-S33034-23
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
for 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 appealed (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 of
-4- J-S33034-23
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
petition. 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 set 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) interference 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)).
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A petition 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 without 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 subsequent 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 address 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 pursued, 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 Appellant’s judgment of sentence became
4 Tr. Ct. Order 3/28/17; Tr. Ct. Order 8/11/2017; Tr. Ct. Order 8/23/2017.
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final. Attorney Burke’s failure to pursue an appeal 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]
(and 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
substantial 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, 2023, Order vacated. Appeal dismissed.
Jurisdiction relinquished.
11/3/2023
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