J-S04004-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

MEARL TRAPPER CLARK

                          Appellant                  No. 604 WDA 2015


                 Appeal from the PCRA Order March 30, 2015
                In the Court of Common Pleas of Butler County
             Criminal Division at No(s): CP-10-CR-0001765-2001


BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                        FILED FEBRUARY 16, 2016

       Mearl Trapper Clark appeals from the March 30, 2015 order dismissing

his pro se PCRA petition. We affirm.

       On August 5, 2002, Appellant pled guilty to two counts each of

involuntary deviate sexual intercourse, and the Commonwealth nol prossed

two counts each of sexual abuse of children, and possession of child

pornography as well as other offenses.           These charges arose from

Appellant’s long-standing sexual abuse of his two minor stepdaughters, both

of whom were under ten years old when victimized.

       On December 23, 2002, Appellant was found to be a sexually violent

predator (“SVP”), and sentenced to ten to thirty years imprisonment

followed by ten years probation. On March 19, 2004, we affirmed, rejecting


*
    Retired Senior Judge assigned to the Superior Court.
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his   challenge    to   the    court’s   determination   that    he   was   an   SVP.

Commonwealth v. Clark, 850 A.2d 5 (Pa.Super. 2004) (unpublished

memorandum). Appellant filed a timely PCRA petition on May 4, 2004, and

that petition was denied. Appellant’s appeal from that denial was dismissed

due to his failure to file a brief.        Appellant filed a second PCRA petition,

which was dismissed as untimely. On appeal, we affirmed. Commonwealth

v. Clark, 22 A.3d 1083 (Pa.Super. 2010) (unpublished memorandum).

       On March 2, 2015, Appellant filed a third PCRA petition, which he

styled as a motion to vacate an illegal sentence.               He claimed that his

sentence, which was imposed pursuant to 42 Pa.C.S. § 9718, relating to

sentences for offenses against infant persons and imposing mandatory

minimum sentences according to the age of a victim, was unconstitutional

under Alleyne v. United States, 133 S.Ct. 2151 (2013).1                After issuing

notice of its intent to do so, the PCRA court dismissed Appellant’s petition.

This pro se appeal followed. Appellant did not comply with the trial court’s

directive, which was issued after this appeal was filed, for him to file a

Pa.R.A.P. 1925(b) statement.          Appellant avers herein that his mandatory

____________________________________________


1
  In Alleyne, the United States Supreme Court held that any fact, other
than a prior conviction, that triggers application of a mandatory minimum
sentence must be proven beyond a reasonable doubt before the factfinder.
Section   9718    was    held    unconstitutional  based   upon   Alleyne.
Commonwealth v. Wolfe, 106 A.3d 800 (Pa.Super. 2014), appeal granted,
121 A.3d 433 (Pa. 2015).



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minimum sentence is illegal under Alleyne and that the trial court erred in

determining that it was not authorized to vacate it.2 Appellant’s brief at 4.

       Initially, we note that our “standard of review of the denial of a PCRA

petition is limited to examining whether the evidence of record supports the

court’s determination and whether its decision is free of legal error.”

Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa.Super. 2015). Before

we proceed to the merits of Appellant’s contention that his sentence was

rendered illegal under Alleyne, we must determine whether Appellant’s

March 2, 2015 PCRA petition was timely filed as that issue implicates our

jurisdiction. Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014). If

a PCRA petition is untimely, “neither this Court nor the trial court has

jurisdiction over the petition.” Id. at 992 (quoting Commonwealth v.

Seskey, 86 A.3d 237, 241 (Pa.Super. 2014)); see Commonwealth v.

Chester, 895 A.2d 520, 522 (Pa. 2006).

       Any PCRA petition, “including a second or subsequent petition, shall be

filed within one year of the date the judgment becomes final” unless an

exception to the one-year time restriction applies. 42 Pa.C.S. § 9545(b)(1).

Accordingly, we must determine when Appellant’s judgment of sentence
____________________________________________


2
  Appellant’s challenge to his mandatory minimum sentence relates to its
legality, and cannot be waived. Commonwealth v. Foster, 960 A.2d 160
(Pa.Super. 2008), aff’d by an equally divided court, 17 A.3d 332 (Pa. 2011).
Hence, we decline to find waiver based upon Appellant’s failure to file a
Pa.R.A.P. 1925(b) statement.



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became final. “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 time for seeking

the review.” 42 Pa.C.S. § 9545(b)(3). In this case, since Appellant did not

file a petition for allowance of appeal, Appellant’s sentence became final on

April 18, 2004, thirty days after our March 19, 2004 affirmance on direct

appeal.   Appellant had until April 18, 2005, to file a timely PCRA petition,

and the present March 2, 2015 petition is untimely by ten years.

     There are three exceptions to the one-year time bar of § 9545:

      (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.

42 Pa.C.S. § 9545(b)(1)(i-iii). “Any petition invoking an exception provided

in paragraph (1) shall be filed within 60 days of the date the claim could

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

     Herein, Appellant does not acknowledge that his petition was untimely

and does not invoke any exception.      He continually insists that his issue



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relates to the legality of his sentence and maintains that such an issue

cannot be waived. However, our Supreme Court has held specifically that,

“Although legality of sentence is always subject to review within the PCRA,

claims must still first satisfy the PCRA's time limits or one of the exceptions

thereto.”   Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999); see

also Commonwealth v. Jackson, 30 A.3d 516 (Pa.Super. 2011).

      Accordingly, Appellant’s brief fatally fails to address the crucial issue

on appeal, which is how his petition falls within one of the exceptions to the

PCRA’s one-year time bar. We further observe that we have held specifically

that, since Alleyne has not been held to be retroactive by either our

Supreme Court or the United States Supreme Court, it does not fall within

the newly-recognized constitutional right exception to § 9545(b)(1). Miller,

supra. Finally, Alleyne was decided on June 17, 2013, and Appellant did

not file the present PCRA petition until March 2, 2015.         Thus, he did not

present his claim within sixty days of when it could have been presented,

and his PCRA petition is untimely for that additional reason.

      Having determined that the present PCRA petition was untimely, we

affirm the denial of PCRA relief.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/16/2016




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