J-S60045-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                  Appellee                :
          v.                              :
                                          :
JEFFREY DAVID CLAPSADL,                   :
                                          :
                  Appellant               :   No. 330 MDA 2018

                   Appeal from the PCRA Order January 9, 2018
                  in the Court of Common Pleas of Berks County
               Criminal Division at No(s): CP-06-CR-0002362-1994

BEFORE:        SHOGAN, J., NICHOLS, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                FILED DECEMBER 18, 2018

     Jeffrey David Clapsadl (Appellant) appeals pro se from the January 9,

2018 order dismissing his petition for writ of habeas corpus as an untimely-

filed petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546. We affirm.

            Following a jury trial, [Appellant] was sentenced to life
     imprisonment plus three and one-half to seven years for first
     degree murder, aggravated assault, possessing an instrument of
     crime and abuse of a corpse. The evidence at trial established
     that [Appellant] killed Renee Layser, the mother of his unborn
     child, with a single shotgun blast to the back of her head from a
     distance of two feet. He then transported her body to a wooded
     area and buried it in a shallow grave.

           A direct appeal was filed with this court on May 9, 1995.
     We affirmed the judgment of sentence on July 16, 1996. See
     Commonwealth v. Clapsadl, [685 A.2d 207 (Pa. Super. 1996)
     (unpublished)]. On August 12, 1996, a petition for allowance of
     appeal was filed with our Supreme Court. The petition was
     denied on April 7, 1997. [Commonwealth v. Clapsadl, 692
     A.2d 562 (Pa. 1997)].


*Retired Senior Judge assigned to the Superior Court.
J-S60045-18

Commonwealth v. Clapsadl, 747 A.2d 410 (Pa. Super. 1999) (unpublished

memorandum). Since then, Appellant has filed two PCRA petitions, both of

which resulted in no relief.

        Appellant filed the petition at issue herein on August 24, 2016.

Although styled as a petition for writ of habeas corpus, the PCRA court

treated the August 24, 2016 filing as Appellant’s third PCRA petition. The

court dismissed the petition by order dated January 9, 2018, and on

February 12, 2018, Appellant timely filed a notice of appeal.1 Both Appellant

and the PCRA court complied with Pa.R.A.P. 1925.       We review the court’s

January 9, 2018 order mindful of the following.

        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

of sentence is final unless the petition alleges, and the petitioner proves,

that an exception to the time for filing the petition is met.      42 Pa.C.S.

§ 9545.     “In addition, [t]he PCRA limits the reach of the exceptions by

providing that the exceptions must be pled within sixty days of the date the

claim     could   have   been    presented.   42   Pa.C.S.   §   9545(b)(2).”

1
  Appellant’s notice of appeal was not docketed until February 12, 2018,
more than thirty days after the PCRA court dismissed Appellant’s petition.
However, “the prisoner mailbox rule provides that a pro se prisoner’s
document is deemed filed on the date he delivers it to prison authorities for
mailing.” Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa. Super. 2011).
Thus, for the purposes of this appeal, Appellant’s notice of appeal, dated
January 31, 2018, is timely.




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J-S60045-18

Commonwealth v. Geer, 936 A.2d 1075, 1077 (Pa. Super. 2007)

(quotation marks omitted; brackets in original).

      It is clear that Appellant’s petition is facially untimely; his judgment of

sentence became final in 1997. However, Appellant alleges that his petition

is based upon a change in the law, referencing Miller v. Alabama, 567 U.S.

460 (2012) and Montgomery v. Louisiana, __U.S.__, 136 S.Ct. 718

(2016). Appellant’s Brief at 6-8. Thus, it appears that Appellant is alleging

that the following timeliness exception applies: “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.” 42

Pa.C.S. § 9545(b)(1)(iii).

      In Miller, the Court held that the application of mandatory sentences

of life imprisonment without possibility of parole to individuals who were

juveniles at the time they committed homicides was unconstitutional.

Miller, 567 U.S. at 465.     In Montgomery, decided in January 2016, the

Court determined that Miller announced a new substantive rule of law that

applies retroactively. Montgomery, 136 S. Ct. at 736.

      Appellant was not a juvenile at the time of the murder; rather, he was

23 years old. See Appellant’s Brief at 4 (stating Appellant “was 23 years old

at the time of the offense”).   Therefore, Miller and Montgomery are not

applicable to Appellant’s petition.   See Commonwealth v. Furgess, 149



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A.3d 90, 94 (Pa. Super. 2016) (holding that Furgess, who was 19 at the

time of the murder could not rely on Miller “to bring [himself] within the

time-bar exception in Section 9545(b)(1)(iii)”).       Furthermore, we find

Appellant’s attempt to advocate that the holding in Miller should be

expanded to include individuals like himself is likewise unsuccessful.     We

have previously addressed and rejected a similar argument regarding the

applicability of Miller.    See Commonwealth v. Montgomery, 181 A.3d

359, 366 (Pa. Super. 2018) (en banc) (“Appellant’s argument attempts to

extend Miller to those adults whose brains were not fully developed at the

time of their offense.     This argument fails, however, because a contention

that a newly-recognized constitutional right should be extended to others

does not [satisfy the new constitutional rule exception to the PCRA’s

timeliness requirement.]”). (citation and quotation marks omitted; brackets

in original).

      Additionally, Appellant’s attempt to couch this claim as one in violation

of the equal protection clause is unavailing. See Id. (“Neither the Supreme

Court of the United States nor our Supreme Court has held that Miller

announced a new rule under the Equal Protection Clause. Instead, Miller

only announced a new rule with respect to the Eighth Amendment. Thus,

contrary to Appellant’s assertion, his Equal Protection Clause argument is

also an attempt to extend Miller’s holding.”).




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      Lastly, we note that Appellant filed his petition on August 24, 2017,

more than 60 days after Montgomery v. Louisiana.              Consequently,

Appellant’s petition was untimely filed.   See Commonwealth v. Secreti,

134 A.3d 77, 82 (Pa. Super. 2016) (holding the date of the Montgomery v.

Louisiana decision is the benchmark “for purposes of the 60-day rule” in

cases involving the Miller decision). Accordingly, the PCRA court properly

dismissed Appellant’s petition.2

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/18/2018




2
  We are cognizant that this Court recently certified Commonwealth v. Lee,
No. 1891 WDA 2016, for en banc review to address whether the holding in
Miller applies only to those who were younger than 18 at the time the
offense was committed. Regardless, because Appellant’s petition was not
filed within 60 days of the Montgomery v. Louisiana decision, and is
therefore untimely, we find this case distinguishable from Lee, and as such,
we decline to hold this case in abeyance pending our disposition in Lee.



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