J-S47026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

JEFFREY B. CLARKE

                            Appellant                     No. 9 MDA 2015


                Appeal from the PCRA Order December 4, 2014
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0000743-1997
                            CP-22-CR-0000744-1997


BEFORE: ALLEN, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                                FILED AUGUST 07, 2015

        Jeffrey B. Clarke appeals, pro se, from the order entered December 4,

2014, in the Court of Common Pleas of Dauphin County, dismissing his

fourth petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546. Clarke seeks relief from the judgment of sentence of

25 to 75 years’ incarceration, imposed on November 20, 1998, following a

revocation of his probation.1         On appeal, Clarke presents three claims in
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   The trial court imposed five consecutive terms of five to 15 years’
incarceration on five robbery counts, and four consecutive terms of ten
years’ probation on four counts of conspiracy to commit robbery. On the
remaining count of conspiracy to commit theft, the trial court imposed a
sentence of time served. The trial court applied mandatory minimums
pursuant to 42 Pa.C.S. § 9712 (“Sentences for offenses committed with
firearms.”).
J-S47026-15



support of his contention that he is entitled to PCRA relief because his

sentence is illegal pursuant to Alleyne v. United States, 133 S.Ct. 2151

(2013). Based on the following, we affirm.

      The PCRA court set forth the relevant factual and procedural history as

follows:

      [Clarke] was arrested on October 31, 1996, and again on
      November 10, 1996. On August 18, 1997, [Clarke] plead guilty
      to five (5) counts [of] Robbery3, four (4) counts [of] Criminal
      Conspiracy to Commit Robbery4, and one (1) count Criminal
      Conspiracy to Commit Theft5.           Thereafter, [Clarke] was
      sentenced by the Honorable Lawrence F. Clark, Jr., now retired,
      to five (5) years of intermediate punishment with the first eleven
      (11) months to be served at the Dauphin County Work Release
      Center, followed by ten (10) years of probation.

            ___________________
            3
              18 Pa.C.S.A. § 3701 §§ (A)(1).
            4
                18 Pa.C.S.A. § 903.
            5
             18 Pa.C.S.A. § 903.
            ___________________

      On June 1, 1998, [Clarke] was arrested for a violation of the
      conditions of his intermediate punishment. On November 20,
      1998, [Clarke] appeared before Judge Clark for a revocation
      hearing, at which time his intermediate punishment and
      probation were revoked.      [Clarke] was resentenced to an
      aggregate incarceration term of twenty-five (25) to seventy-five
      (75) years, followed by forty (40) years of probation. [Clarke]
      was represented at the revocation hearing by Jason Kutulakis,
      Assistant Public Defender.

      [Clarke] filed a Motion to Modify Sentence, which was
      subsequently denied by Judge Clark. Attorney Kutulakis filed a
      timely direct appeal on [Clarke’s] behalf; the judgment [of]
      sentence was affirmed by the Superior Court on December 6,
      1999. [Clarke] filed a Petition for Allowance of Appeal to the
      Supreme Court of Pennsylvania on January 4, 2000, which was
      subsequently denied on May 9, 2000.
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     First PCRA

     On April 30, 2001, [Clarke] filed his first pro se PCRA petition.
     Jeffrey Engle, Esquire[,] was appointed by the Court as PCRA
     counsel.8 On August 1, 2001, [Clarke’s] PCRA petition was
     denied. [Clarke] appealed the denial to the Superior Court; the
     denial was affirmed on July 23, 2002. [Clarke] filed a Petition
     for Allowance of Appeal to the Supreme Court of Pennsylvania on
     August 22, 2002, which was subsequently denied on December
     24, 2002.

          ___________________
          8
            Procedural history prior to 2003 was provided by
          [Clarke] in his Amended Petition under Post-
          Conviction Relief Act, filed June 20, 2001.
          ___________________

     Second PCRA

     On February 27, 2003, [Clarke] filed his second pro se PCRA
     petition. William Shreve, Esquire[,] was appointed by the Court
     as PCRA counsel. On August 4, 2003, counsel filed Motion to
     Withdraw pursuant to the Post-Conviction Collateral Relief Act on
     May 11, 2004, denied [Clarke’s] PCRA request and granted court
     appointed counsel’s motion to withdraw. On May 11, 2004,
     Judge Clark granted counsel’s motion to withdraw and denied
     [Clarke’s] PCRA petition. [Clarke] appealed the denial to the
     Superior Court; the denial was affirmed on January 13, 2005.

     Third PCRA

     On September 20, 2011, [Clarke] filed his third pro se PCRA
     petition. Jonathan Crisp, Esquire[,] was appointed by the Court
     as PCRA counsel. On November 23, 2011, counsel filed a Motion
     to Withdraw with a Turner-Finley “No Merit Letter”. Judge Clark
     granted Counsel Motion to Withdraw on November 29, 2011. On
     December 28, 2011, [Clarke’s] PCRA petition was denied.
     [Clarke] appealed the denial to the Superior Court; the denial
     was affirmed on July 30, 2012. [Clarke] filed a Petition for
     Allowance of Appeal to the Supreme Court of Pennsylvania on
     August 23, 2012, which was subsequently denied on January 7,
     2013.

     Fourth PCRA Petition

     On September 5, 2014, [Clarke] filed his fourth pro se PCRA
     petition. In [Clarke’s] PCRA petition, he claimed that he is
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J-S47026-15


       eligible for relief because of a Constitutional violation; the
       imposition of a sentence greater than the lawful maximum; and
       a proceeding in a tribunal without jurisdiction. [Clarke] alleges
       an illegal sentence because additional factors were used to
       determine the sentence that was not submitted to the jury14.

              ___________________
              14
                 [Clarke] was not sentenced following a trial by
              jury; he was sentenced based upon guilty plea.
              ___________________

PCRA Court Opinion, 11/5/2014, at 1-3 (some footnotes omitted).            On

November 5, 2014, the PCRA court issued Pa.R.Crim.P. 907 notice of its

intent to dismiss the petition without a hearing.   On November 20, 2014,

Clarke responded to the Pa.R.Crim.P. 907 notice. On December 4, 2014, the

PCRA court dismissed Clarke’s petition as untimely filed.        This appeal

followed.2

       Our standard of review is as follows:

       Our standard of review of an order denying PCRA relief is
       whether the record supports the PCRA court’s determination and
       whether the PCRA court’s decision is free of legal error. The
       PCRA court’s findings will not be disturbed unless there is no
       support for the findings in the certified record.

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citations

omitted).



____________________________________________


2
  On January 14, 2015, the PCRA court ordered Clarke to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. He complied
with the court’s directive, and filed a Rule 1925(b) statement on February 2,
2015. On February 23, 2015, the PCRA court filed a Statement in Lieu of
Rule 1925(a) opinion.


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      “Crucial to the determination of any PCRA appeal is the timeliness of

the underlying petition. Thus, we must first determine whether the instant

PCRA petition was timely filed.” Commonwealth v. Smith, 35 A.3d 766,

768 (Pa. Super. 2011), appeal denied, 53 A.3d 757 (Pa. 2012).          A PCRA

petition must be filed within one year of the date that a judgment of

sentence becomes final.       See 42 Pa.C.S. § 9545(b)(1); see also

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

time requirement is mandatory and jurisdictional in nature, and the court

may not ignore it in order to reach the merits of the petition. Hernandez,

supra, at 651.

      Here, Clarke’s judgment of sentence became final on August 7, 2000,

90 days after the Pennsylvania Supreme Court denied his petition for

allowance of appeal, and the time for filing a writ of certiorari to the United

State Supreme Court had expired. See Pa.C.S. § 9545(b)(3); see also U.S.

Supreme Court Rule 13 (petition for writ of certiorari is deemed timely when

filed within 90 days after discretionary review is denied by the Pennsylvania

Supreme Court). Therefore, pursuant to Section 9545(b)(1), Clarke had one

year from the date his judgment of sentence became final to file a PCRA

petition. See Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013),

cert. denied, 134 S.Ct. 2695 (2014). The instant petition was not filed until

September 5, 2014, over 14 years later, making it patently untimely.

      An untimely PCRA petition may, nevertheless, be considered if one of

the following three exceptions applies:

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J-S47026-15


       (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 ascertained 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). Furthermore, a PCRA petition alleging any of

the exceptions under Section 9545(b)(1) must be filed within 60 days of

when the PCRA claim could have first been brought.                  42 Pa.C.S. §

9545(b)(2).

       Based on the inter-related nature of Clarke’s issues, relating to
                                                 3
Alleyne, we will address them together.              First, Clarke alleges that the


____________________________________________


3
  In Alleyne, supra, the United States Supreme Court held “[a]ny fact that,
by law, increases the penalty for a crime is an ‘element’ that must be
submitted to the jury and found beyond a reasonable doubt.” Id. at 2155.
Applying this mandate, our Courts have held that Alleyne renders numerous
mandatory minimum sentencing statutes unconstitutional.                See
Commonwealth v. Hopkins, ___ A.3d ___ [2015 WL 3949099] (Pa. 2015)
(holding 18 Pa.C.S. § 6317 is unconstitutional and non-severable);
Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc)
(finding 42 Pa.C.S. § 9712.1 unconstitutional). See also Commonwealth
v. Vargas, 108 A.3d 858 (Pa. Super. 2014) (en banc) (invalidating 18
Pa.C.S. § 7508); Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super.
2014) (invalidating 42 Pa.C.S. § 9718); Commonwealth v. Valentine, 101
A.3d 801 (Pa. Super. 2014) (invalidating 42 Pa.C.S. §§ 9712 and 9713).



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J-S47026-15


PCRA court erred in denying his PCRA petition because “it did not give

consideration to the substantial change in law dictated by Alleyne, [supra],

which made [the provisions of] 42 Pa.C.S. §§ 9712, 9714, and 9716

unconstitutional.”     Clarke’s Brief at 8.       Specifically he states, “[i]t is now

unconstitutional for a judge to use [an] additional element that the jury

assessment [of the] facts did not entail to increase the prescribe range of

penalties to which criminal defendant is exposed.” Id. He further states he

was not charged or convicted of possessing a firearm during the crime and

the Commonwealth waived its right to use the “mandatory minimum firearm

enhancement.”        Id. at 9.      In his second argument, Clarke claims the

application of the “mandatory minimum firearm enhancement” provision at

his revocation sentencing hearing violates Alleyne. He states the trial court

used a “preponderance of evidence” standard set forth in McMillian v.

Pennsylvania, 477 U.S. 79 (U.S. 1986), which was overruled by Alleyne.

See Id. at 11-12.        In his final argument, Clarke claims that the trial court

violated the terms of the negotiated plea agreement by “applying the

mandatory      minimum      firearm    enhancement           and    imposing   consecutive

sentencing”     when      re-sentencing        Clarke   at    the     revocation   hearing

proceeding. See Clarke’s Brief at 13.4

____________________________________________


4
  It bears mention that in his direct appeal, Clarke argued “the trial court
erred by applying the mandatory [minimum], which the Commonwealth
previously had agreed to waive.” See Commonwealth v. Clarke, 750 A.2d
(Footnote Continued Next Page)


                                           -7-
J-S47026-15


       With respect to these arguments, Clarke does not invoke any statutory

exception to the PCRA time-bar. See 42 Pa.C.S. § 9545(b)(1)(i-iii), supra.

Moreover, even assuming that based on Alleyne, Clarke is attempting to

take advantage of the “new retroactive constitutional right” exception, set

forth in Section 9545(b)(1)(iii), Clarke’s arguments fail for the following

reasons.

       First, Clarke filed his fourth PCRA petition on September 5, 2014, more

than   a   year   after     Alleyne     was      decided   on   June   17,   2013.   In

Commonwealth v. Brandon, 51 A.3d 231 (Pa. Super. 2012), this Court

held “the sixty-day period begins to run upon the date of the underlying

judicial decision.” Id. at 235, citing Commonwealth v. Baldwin, 789 A.2d

728, 731 (Pa. Super. 2001), appeal denied, 863 A.2d 1141 (Pa. 2004).

Therefore, Clarke failed to file his petition within 60 days of the date the

claim could have been presented under Section 9545(b)(2). Consequently,

the PCRA petition is untimely on this basis.

       Second, even if Clarke’s petition had been filed within 60 days of

Alleyne, “neither our Supreme Court, nor the United States Supreme Court

has held that Alleyne is to be applied retroactively to cases in which the
                       _______________________
(Footnote Continued)

365 [185 MDA 1999] (Pa. Super. 1999) (unpublished memorandum, at 7),
appeal denied, 758 A.2d 660 (Pa. 2000). This Court rejected the argument
stating, the trial court “clearly informed [Clarke] that the Commonwealth
only agreed to waive the [mandatory minimum] so that he would be eligible
to participate in the [intermediate punishment] program.” Id. at 8 (citation
omitted).


                                            -8-
J-S47026-15


judgment of sentence had become final.” Commonwealth v. Miller, 102

A.3d 988, 995 (Pa. Super. 2014).               Therefore, Alleyne does not provide

Clarke with an exception under Section 9545(b)(1)(iii) to the PCRA’s timing

requirements.       Accordingly, none of Clarke’s arguments overcome the

PCRA’s time-bar.

       Because Clarke is unable to demonstrate the applicability of any

statutory exception to the timing requirements of the PCRA, we affirm the

court’s dismissal of Clarke’s fourth PCRA petition.5

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/2015




____________________________________________


5
  Although our reasoning differs from the PCRA court, we may affirm the
PCRA court on any basis. See Commonwealth v. Reid, 107 A.3d 137, 144
(Pa. Super. 2014).


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