J-S30037-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
           v.                             :
                                          :
JEFFREY B. CLARKE,                        :
                                          :
                  Appellant               :          No. 1455 MDA 2016

                  Appeal from the PCRA Order August 1, 2016
               in the Court of Common Pleas of Dauphin County,
              Criminal Division, No(s): CP-22-CR-0000743-1997;
                            CP-22-CR-0000744-1997

BEFORE: SHOGAN, RANSOM and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                           FILED JUNE 12, 2017

     Jeffrey B. Clarke (“Clarke”), pro se, appeals from the Order dismissing

his fifth Petition for relief filed pursuant to the Post Conviction Relief Act

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

     In August 1997, Clarke pled guilty to five counts of robbery and related

crimes, and received a sentence of intermediate punishment (“IP”) followed

by probation. In June 1998, Clarke was arrested for violating the conditions

of his IP/probation.   In November 1998, the trial court revoked Clarke’s

IP/probation, and sentenced him to serve an aggregate prison term of 25-75

years, followed by 40 years of probation.1 This Court affirmed Clarke’s



1
   In imposing Clarke’s sentence, the trial court applied the mandatory
minimum sentencing provision at 42 Pa.C.S.A. § 9712 (“sentences for
offenses committed with firearms”). Section 9712 provides, inter alia, that its
provisions “shall not be an element of the crime,” and that the applicability
“shall be determined at sentencing,” with factual matters being resolved by
the sentencing court “by a preponderance of the evidence.” Id. § 9712(b).
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judgment of sentence, after which the Supreme Court of Pennsylvania denied

allowance of appeal.   See Commonwealth v. Clarke, 750 A.2d 365 (Pa.

Super. 1999) (unpublished memorandum), appeal denied, 758 A.2d 660

(Pa. 2000). Clarke thereafter filed four separate Petitions for relief under the

PCRA, all of which were dismissed, and our appellate courts affirmed the

dismissals.2

      On March 14, 2016, Clarke filed the instant PCRA Petition, his fifth. In

July 2016, the PCRA court issued a Pennsylvania Rule of Criminal Procedure

907 Notice of Intent to Dismiss the Petition without an evidentiary hearing,

and filed therewith a Memorandum Opinion in support of the Notice. 3 Clarke

filed a pro se “Objection” to the Rule 907 Notice.    By an Order entered on


2
  This Court previously expounded upon the disposition of Clarke’s PCRA
Petitions, in connection with Clarke’s appeal from the dismissal of his fourth
PCRA Petition. See Commonwealth v. Clarke, 131 A.3d 87 (Pa. Super.
2015) (unpublished memorandum at 3-5) (hereinafter referred to as “Clarke
IV”).
3
  The PCRA court observed in its Memorandum Opinion that “[Clarke’s] fifth
PCRA [P]etition is nearly identical to his fourth PCRA Petition, except that it
includes an additional case, Montgomery v. Louisiana, [136 S. Ct. 718]
(2016), to support his request for relief.” Memorandum Opinion, 7/1/16, at
1; see also Clarke IV, 131 A.3d 87 (unpublished memorandum at 7-10)
(addressing the claims raised in Clarke’s fourth PCRA Petition).          The
Montgomery Court held, inter alia, that “when a new substantive rule of
constitutional law controls the outcome of a case, the Constitution requires
state collateral review courts to give retroactive effect to that rule.”
Montgomery, 136 S. Ct. at 729. In so ruling, the Montgomery Court
concluded that the new substantive rule of constitutional law announced in
Miller v. Alabama, 132 S. Ct. 2455 (2012) (holding that sentencing schemes
that mandate life in prison without parole for defendants who committed their
crimes while under the age of eighteen violate the Eighth Amendment’s
prohibition on “cruel and unusual punishments,” id. at 2460), applies
retroactively. Montgomery, 136 S. Ct. at 736.


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August 1, 2016, the PCRA court dismissed Clarke’s PCRA Petition. On August

25, 2016, Clarke filed a pro se Notice of Appeal.4     In response, the PCRA

court ordered Clarke to file a Pa.R.A.P. 1925(b) Concise Statement of errors

complained of on appeal, and Clarke timely complied.

     On appeal, Clarke presents the following questions for our review:

       I.   [Whether] the [PCRA] court erred in denying [Clarke’s] PCRA
            Petition, where [Clarke] challenged the legality of [his]
            sentence pursuant to the decision of Alleyne v. United
            States, 133 S. Ct. 2151 (2013),[5] in[]that, pursuant to the
            decision made in Montgomery[, supra], give it [sic]
            retroactive effect[?]

      II.   Whether there is constitutional authority and statutory
            authority to maintain [Clarke’s] mandatory minimum
            sentencing for offense that are void [sic]?

Brief for Appellant at 4 (footnote added; some capitalization omitted; issues

renumbered).      As Clarke’s issues are related, we will address them

simultaneously.

4
 While the PCRA court’s docket indicates that Clarke filed his Notice of Appeal
on August 25, 2016 (which is within the thirty-day appeal period mandated
by Pa.R.A.P. 903(a)), this Court’s docket indicates that the Notice of Appeal
was docketed on September 8, 2016. However, this Court’s docket also
provides that Clarke paid the filing fee concerning the Notice of Appeal on
August 25, 2016. In the interest of justice, we will deem the filing date as
August 25, 2016.
5
  In Alleyne, the Supreme Court held that “any fact that increases the
mandatory minimum is an ‘element’ that must be submitted to the jury” and
found beyond a reasonable doubt. Alleyne, 133 S. Ct. at 2155. The
Supreme Court reasoned that a Sixth Amendment violation occurs where
these sentence-determinative facts are not submitted to a jury. Id. at 2156.
Accordingly, Alleyne rendered unconstitutional various Pennsylvania statutes,
including 42 Pa.C.S.A. § 9712, that allow a judge to increase a defendant’s
sentence based on a preponderance of the evidence standard.              See
Commonwealth v. Valentine, 101 A.3d 801, 812 (Pa. Super. 2014) (ruling
that Alleyne rendered section 9712 unconstitutional in its entirety).


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J-S30037-17

      When reviewing an order dismissing a PCRA petition, we examine

whether the determination of the PCRA court is supported by the record and

free of legal error.   Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.

Super. 2014). The merits of a PCRA petition cannot be addressed unless the

PCRA court has jurisdiction. Commonwealth v. Albrecht, 994 A.2d 1091,

1093 (Pa. 2010). Jurisdiction does not exist if the PCRA petition is untimely

filed. Id.

      Any PCRA petition must be filed within one year of the date the

judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). Here, Clarke concedes

that his instant PCRA Petition is facially untimely, as it was filed over fifteen

years after August 7, 2000, when his judgment of sentence became final.

      However, Pennsylvania courts may consider an untimely petition if the

appellant can explicitly plead and prove one of three exceptions set forth in

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any PCRA petition invoking one of these

exceptions “shall be filed within 60 days of the date the claim could have been

presented.” Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094.

      Here, Clarke cites the United States Supreme Court’s recent decision in

Montgomery, supra,6 and invokes the newly-recognized constitutional right

exception at section 9545(b)(1)(iii).   See Brief for Appellant at 14, 16-21.

Clarke argues that Montgomery rendered retroactive the new constitutional

right announced in Alleyne, making his mandatory minimum sentence


6
  Clarke filed his instant PCRA Petition within 60 days of the Montgomery
decision. See 42 Pa.C.S.A. § 9545(b)(2).


                                  -4-
J-S30037-17

imposed under 42 Pa.C.S.A. § 9712 unlawful. See Brief for Appellant at 14,

16-21.

      Initially, we observe that the new rule of constitutional law announced

in Miller, supra is inapplicable to the instant case, as Clarke was not (1)

under the age of eighteen at the time of the crimes, or (2) sentenced to life in

prison without parole.    Contrary to Clarke’s claim, Montgomery, which

discussed only the Miller holding, did not retroactively apply a constitutional

right applicable to Clarke. In any event, our Pennsylvania Supreme Court has

recently reiterated that Alleyne does not apply retroactively on post-

conviction collateral review. See Commonwealth v. Washington, 142 A.3d

810, 811 (Pa. 2016); accord Clarke IV, 131 A.3d 87 (unpublished

memorandum at 10) (ruling that Clarke’s invocation of Alleyne in his fourth

PCRA Petition did not entitle him to relief under the newly-recognized

constitutional right exception because, inter alia, Alleyne does not apply

retroactively).

      We conclude that Clarke has failed to meet the requirements of the

newly-recognized    constitutional    right   exception,   and   Montgomery   is

unavailing.   Accordingly, the PCRA court properly dismissed Clarke’s fifth

PCRA Petition as untimely.




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J-S30037-17

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/12/2017




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