J-S33016-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                    Appellee              :
                                          :
            v.                            :
                                          :
VANDER K. CLAYBORNE,                      :
                                          :
                    Appellant             : No. 3380 EDA 2014

                  Appeal from the PCRA Order October 9, 2014,
                    Court of Common Pleas, Delaware County,
                 Criminal Division at No. CP-23-CR-0009696-1990

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and LAZARUS, JJ.

MEMORANDUM BY DONOHUE, J.:                             FILED JUNE 8, 2015

      Appellant, Vander K. Clayborne (“Clayborne”), appeals from the order

dated October 9, 2014, dismissing as untimely his petition for habeas corpus

relief. For the reasons that follow, we affirm.

      On October 3, 1991, Clayborne plead guilty to murder generally and

aggravated assault. The trial court conducted a degree of guilt hearing on

the murder charge and found Clayborne guilty of murder in the first degree.

After a jury could not reach a unanimous verdict in the death penalty phase,

the trial court sentenced Clayborne to a term of imprisonment of life plus

78-240 months.       On August 9, 1993, this Court affirmed the judgment of

sentence, and on December 15, 1994, our Supreme Court denied a petition

for allowance of appeal. In April 1994, Clayborne filed a petition for relief

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§ 9541-
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46, which the PCRA court subsequently dismissed.          On July 28, 2011,

Clayborne filed a “Petition for Writ of Habeas Corpus and Declaratory

Judgment.” The trial court treated this petition as a second PCRA petition

and dismissed it on September 29, 2011. On December 12, 2012, this Court

affirmed the dismissal.

      On July 25, 2014, Clayborne initiated the present action by filing a pro

se “Petition for Writ of Habeas Corpus, with Motion to Vacate Waivers and

Judgment of Conviction/Sentence.” The trial court treated this petition as a

PCRA petition (his third), and on October 9, 2014 dismissed it without an

evidentiary hearing as untimely.    On appeal, Clayborne contends that his

petition should not have been treated as a PCRA petition and that, in any

event, it is not untimely under the PCRA.

      For his first issue on appeal, Clayborne contends that he filed a

petition for writ of habeas corpus and that it should not have been treated as

filed pursuant to the PCRA. We cannot agree. This Court has “repeatedly

held that ... any petition filed after the judgment of sentence becomes final

will be treated as a PCRA petition.” Commonwealth v. Jackson, 30 A.3d

516, 521 (Pa. Super. 2011) (quoting Commonwealth v. Johnson, 803

A.2d 1291, 1293 (Pa. Super. 2002)).         Clayborne’s claim here is one for

illegality of sentence, and the PCRA plainly provides for relief for “persons

serving illegal sentences.” 42 Pa. C.S.A. § 9542; see Commonwealth v.

Peterkin, 722 A.2d 638, 640–41 (Pa. 1998) (statutory remedy not available



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where claim is cognizable under PCRA); Commonwealth v. Hockenberry,

689 A.2d 283, 288 (Pa. Super. 1997) (legality of sentence is a cognizable

issue under the PCRA). The PCRA provides that it “shall be the sole means

of obtaining collateral relief and encompasses all other common law and

statutory remedies for the same purpose....”        42 Pa. C.S.A. § 9542.

Therefore, the trial court did not err in treating Clayborne’s habeas corpus

petition as a petition for relief under the PCRA.

      For his second issue on appeal, Clayborne argues that his PCRA

petition was not untimely because it involves a new constitutional right

recognized in Alleyne v. United States, 133 S.Ct. 2151 (2013).1          “On

appeal from the denial of PCRA relief, our standard of review calls for us to

determine whether the ruling of the PCRA court is supported by the record

and free of legal error.” Commonwealth v. Gacobano, 65 A.3d 416, 419

(Pa. Super. 2013) (quoting Commonwealth v. Nero, 58 A.3d 802, 805

(Pa. Super. 2012).

      A PCRA petition, including a second or subsequent petition, must be

filed within one year of a final judgment, unless the petitioner alleges and


1
   Clayborne also contends that the PCRA time limits are inapplicable where,
as here, a petitioner alleges a “structural error,” defined by the United
States Supreme Court as a constitutional violation affecting the “framework
within which the trial proceeds, rather than simply an error in the trial
process itself.” Arizona v. Fulminate, 499 U.S. 279, 310 (1991). Our
Supreme Court, however, rejected this argument in Commonwealth v.
Baroni, 827 A.2d 419, 421 (Pa. 2003) (“We hold that an allegation of a
structural error does not, in and of itself, surmount the jurisdictional time
bar of Section 9545(b).”). Id. at 421.


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proves that he is entitled to one of three exceptions to this general rule, and

that the petition was filed within 60 days of the date the claim could have

been presented:

      (b) Time for filing petition.—

            (1) Any petition under this subchapter, including a
            second or subsequent petition, shall be filed within
            one year of the date the judgment becomes final,
            unless the petition alleges and the petitioner proves
            that:

                  (i) the failure to raise the claim
                  previously was the result of interference
                  by   government      officials with   the
                  presentation of the claim in violation of
                  the Constitution or laws of this
                  Commonwealth or the Constitution or
                  laws of the United States;

                  (ii) the facts upon which the claim is
                  predicated    were  unknown   to   the
                  petitioner and could not have been
                  ascertained by the exercise of due
                  diligence; or

                  (iii) 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.

            (2) Any petition invoking an exception provided in
            paragraph (1) shall be filed within 60 days of the
            date the claim could have been presented.




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42 Pa. C.S.A. § 9545(b); Commonwealth v. Edmiston, 65 A.3d 339, 345

(Pa. 2013), cert. denied sub nom., Edmiston v. Pennsylvania, 134 S. Ct.

639 (2013).

      Here Clayborne contends that subsection 9545(b)(1)(iii) applies, since

he is contending that his sentence was illegal because of the unconstitutional

use   of   mandatory   minimum    sentence   enhancements     when    he   was

sentenced.2   Clayborne argues that in Alleyne the United States Supreme

Court ruled that the sorts of mandatory sentence enhancements used in his

case are “invalid and void ab initio.”    Clayborne’s Brief at 6.    Clayborne

further contends that the constitutional rights recognized in Alleyne have

been held to apply retroactively, and thus pursuant to the exception to the

PCRA’s time bar recognized in subsection 9545(b)(1)(iii), his current petition

is not untimely. Id.

      In Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014), this

Court recently made clear that claims based upon Alleyne do not qualify for

the exception under subsection 9545(b)(1)(iii) because neither the United

States Supreme Court nor the Pennsylvania Supreme Court has held that




2
    Although illegality of sentence claims are technically not waivable, this
Court may not consider them without a jurisdictional basis to do so. As we
indicated in Commonwealth v. Seskey, 86 A.3d 237 (Pa. Super. 2014),
“[t]hough not technically waivable, a legality [of sentence] claim may
nevertheless be lost should it be raised ... in an untimely PCRA petition for
which no time-bar exception applies, thus depriving the court of jurisdiction
over the claim.” Id. at 242.


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Alleyne applies retroactively in cases where the judgment of sentence was

final at the time Alleyne was decided.

              Even assuming that Alleyne did announce a new
              constitutional right, neither our Supreme Court, nor
              the United States Supreme Court has held that
              Alleyne is to be applied retroactively to cases in
              which the judgment of sentence had become final.
              This is fatal to Appellant's argument regarding the
              PCRA time-bar. This Court has recognized that a
              new rule of constitutional law is applied retroactively
              to cases on collateral review only if the United States
              Supreme Court or our Supreme Court specifically
              holds it to be retroactively applicable to those cases.
              Commonwealth v. Phillips, 31 A.3d 317, 320 (Pa.
              Super. 2011), appeal denied, 615 Pa. 784, 42 A.3d
              1059 (2012), citing Tyler v. Cain, 533 U.S. 656,
              663, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001); see
              also, e.g., Commonwealth v. Taylor, 933 A.2d
              1035, 1042 (Pa. Super. 2007) (stating, “for purposes
              of subsection (iii), the language ‘has been held by
              that court to apply retroactively’ means the court
              announcing the rule must have also ruled on the
              retroactivity of the new constitutional right, before
              the petitioner can assert retroactive application of
              the right in a PCRA petition[ ]”), appeal denied, 597
              Pa. 715, 951 A.2d 1163 (2008).               Therefore,
              Appellant has failed to satisfy the new constitutional
              right exception to the time-bar.

Id. at 995.

     In the present case, Clayborne’s judgment of sentence became final on

March 15, 1995 (ninety days after our Supreme Court denied his petition for

allowance of appeal), well before Alleyne was decided in 2013.          Thus

Clayborne has failed to satisfy the new constitutional right exception to the

PCRA’s time-bar.




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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/8/2015




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