J-S77005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

FRANKIE JEROME CLARK,

                            Appellant                  No. 15 MDA 2016


            Appeal from the PCRA Order entered December 15, 2015
                In the Court of Common Pleas of Dauphin County
              Criminal Division, at No(s): CP-22-CR-0003745-2006
                                           CP-22-CR-0003747-2006


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.

MEMORANDUM BY PANELLA, J.

        Frankie Jerome Clark (“Appellant”) appeals from the order denying as

untimely his fourth petition for relief pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        On October 8, 2007, Appellant entered a negotiated guilty plea at two

separate dockets to burglary and related charges. In accordance with the

plea terms, the trial court imposed an aggregate sentence of 12½ to 25

years of imprisonment. Appellant did not file a direct appeal.

        Appellant filed a timely first PCRA petition on October 3, 2008, and the

PCRA court appointed counsel. PCRA counsel ultimately filed a motion to

withdraw and a “no-merit” letter pursuant to Commonwealth v. Turner,
____________________________________________



    Retired Senior Judge assigned to the Supreme Court.
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544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213

(Pa. Super. 1988) (en banc). The PCRA Court issued notice of its intent to

dismiss the petition without a hearing and granted the motion to withdraw.

The PCRA court later dismissed Appellant’s first PCRA petition. Appellant did

not file an appeal.

      Appellant unsuccessfully litigated two more PCRA petitions and, on

both occasions, we affirmed the PCRA court’s conclusion that the petition

was untimely. See Commonwealth v. Clark, 24 A.3d 445 (Pa. Super.

2011) (unpublished memorandum); Commonwealth v. Clark, 50 A.3d 254

(Pa. Super. 2012) (unpublished memorandum).

      On August 20, 2015, Appellant filed the PCRA petition at issue—his

fourth—in which he asserted that the trial court imposed an illegal

mandatory minimum sentence pursuant to Alleyne v. United States, 123

S.Ct. 2151 (2013). The PCRA court issued notice of its intent to dismiss the

petition. Appellant did not file a response. The PCRA court then entered an

order dismissing the petition as untimely. This timely appeal follows.

      Within his pro se brief, Appellant raises the following issues:

         1.)   Is   42     Pa.C.S.A.    §9714(a)(1)       and   (a)(2)
               unconstitutional?

         2.)   Is Appellant’s plea unconstitutional?

Appellant’s Brief at 4 (excess capitalization omitted).

      This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is


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supported   by   the   evidence   of   record   and    is   free    of    legal   error.

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005).
    Before addressing Appellant’s substantive issues, we must first

determine whether the PCRA court properly determined that Appellant’s

fourth PCRA petition was untimely.

      The   timeliness   of   a   post-conviction     petition     is    jurisdictional.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

is final, unless the petition alleges and proves an exception to the time for

filing the petition. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A PCRA petition

invoking one of these statutory exceptions must “be filed within sixty days of

the date the claims could have been presented.” Hernandez, 79 A.3d at

651-652 (citing 42 Pa.C.S.A. § 9545(b)(2)).

      Appellant’s judgment of sentence became final on November 7, 2007,

when the thirty-day time period for filing an appeal to this Court expired.

See 42 Pa.C.S.A. § 9545(b)(3). Thus, Appellant had until November 7,

2008, to file a timely PCRA petition. As Appellant filed the instant petition in

2015, it is patently untimely unless he has satisfied his burden of pleading

and proving that one of the enumerated exceptions applies.

      According to Appellant, his latest PCRA petition is timely because he is

raising a claim that he received an illegal sentence in light of the United



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States Supreme Court’s decision in Alleyne v. United States, 133 S.Ct.

2151 (2013). There, the Court held that any fact that increased the

mandatory minimum sentence for a crime is an element thereof, which must

be submitted to a jury and found beyond a reasonable doubt.

     Appellant’s claim is devoid of merit for several reasons, the most

important of which is that there is no indication in the record that the

negotiated sentence imposed upon him included any mandatory minimums.

Indeed, Appellant acknowledges, and the sentencing transcript corroborates,

the fact that Appellant entered his guilty plea in order to avoid the

application of the Sentencing Code’s “three-strike” provision and the

imposition of a mandatory life sentence. See 42 Pa.C.S.A. § 9714. The

record reveals that this section would have applied because Appellant had

committed seven previous burglaries. See N.T., 10/8/07, at 11-12.

     Even if applicable, Appellant’s claim would still fail because he did not

file his petition within sixty days of the 2013 Alleyne decision. See 42

Pa.C.S.A. § 9545(b)(2). Moreover, it is well settled that Alleyne and its

progeny do not apply to sentences increased due to a prior conviction such

as § 9714. See, e.g., Commonwealth v. Riggle, 119 A.3d 1058 (Pa.

Super. 2015).

     Finally, our Supreme Court recently held that “Alleyne does not apply

retroactively to cases pending on collateral review….” Commonwealth v.

Washington, 142 A.3d 810, 820 (Pa. 2016).


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      Thus, for all of these reasons, we affirm the PCRA court’s order

dismissing Appellant’s serial PCRA petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/29/2016




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