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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                    v.

DAVON L. CLARK

                         Appellant                    No. 770 WDA 2016


                 Appeal from the PCRA Order April 28, 2016
           In the Court of Common Pleas of Westmoreland County
             Criminal Division at No(s): CP-65-CR-0003571-2002



BEFORE: BENDER, P.J.E., BOWES, J., AND SOLANO, J.

MEMORANDUM BY BOWES, J.:                           FILED JANUARY 31, 2017

      Davon L. Clark appeals from the April 28, 2016 order dismissing his

fourth PCRA petition as untimely. We affirm.

      On April 7, 2004, a jury convicted Appellant of one count each of

burglary, attempted rape, and aggravated assault, and two counts of

aggravated indecent assault.     In the early morning hours of August 16,

2002, Appellant entered the bedroom of K.O., and placed his fingers inside

her vagina. After K.O. awoke and screamed, Appellant put a knife against

her throat, and told her that he was going to have sex with her. Appellant

commanded the victim to remove her clothing, but she pushed Appellant

onto the floor. As he fell, Appellant inflicted injuries on the victim’s neck and

shoulder. K.O. escaped the room and started to scream for her roommates.

Appellant fled, but his fingerprints were discovered at the point of entry into
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K.O.’s residence. Appellant was sentenced to fifteen years and nine months

to thirty-one years and six months incarceration. On February 10, 2006, we

affirmed, Commonwealth v. Clark, 897 A.2d 515 (Pa.Super. 2006), and

Appellant did not seek further review.

      Appellant filed a timely PCRA petition on March 7, 2006, counsel was

appointed, and counsel filed an amended petition.       After an evidentiary

hearing, PCRA relief was denied. On appeal, we affirmed the denial of PCRA

relief. Commonwealth v. Clark, 964 A.2d 431 (Pa. Super. 2008), appeal

denied, 970 A.2d 428 (Pa. 2009).         On June 24, 2009, Appellant filed a

second PCRA petition pro se. The court ordered PCRA counsel to continue

representation, and PCRA counsel filed a no-merit letter and petition to

withdraw. On January 7, 2010, PCRA relief was denied for a second time,

and counsel was permitted to withdraw.

      In 2011, Appellant filed three additional pro se documents consisting

of a motion for waiver of collection of costs, fines and restitution, a motion

to modify sentence, and a motion asking to file a motion to modify sentence

nunc pro tunc.   Those motions were denied that year.       On December 4,

2014, Appellant filed his third request for post-conviction relief and also

asked that counsel be appointed. Relief was denied on January 26, 2015.

      On March 7, 2016, Appellant filed his fourth PCRA petition, claiming

entitlement to relief under Miller v. Alabama, 132 S.Ct. 2455 (2012), and

Montgomery v. Louisiana, 136 S.Ct. 718 (2016).            The United States

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Supreme Court held in Miller that it was unconstitutional under the Eighth

Amendment’s prohibition against cruel and usual punishment to sentence a

juvenile homicide offender to a mandatory term of life imprisonment without

parole, and Montgomery accorded full retroactive effect to the Miller

decision. Appellant’s March 7, 2016 PCRA petition was filed within sixty days

of when Montgomery was decided. The PCRA court concluded that Miller,

and, concomitantly, Montgomery were inapplicable in this action and

denied relief. This appeal followed.

      On appeal, Appellant asserts that his present PCRA petition is timely

filed as Montgomery created a new constitutional right that is applicable to

him. Specifically, he maintains that Montgomery rendered retroactive the

United States Supreme Court’s decision in Alleyne v. United States, 133

S.Ct. 2151 (2013).     In Alleyne, the Court held that, under the Sixth

Amendment’s right to a jury trial, facts “that increase mandatory minimum

sentences must be submitted to the jury” and found beyond a reasonable

doubt.” Id. at 2163.

      Initially, we note that this Court reviews the “denial of PCRA relief to

determine whether the findings of the PCRA court are supported by the

record and free of legal error.” Commonwealth v. Roane, 142 A.3d 79, 86

(Pa. Super. 2016) (quoting Commonwealth v. Treiber, 121 A.3d 435, 444

(Pa. 2015)).




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     All PCRA petitions must be filed within one year of the date a

defendant’s judgment becomes final unless an exception to the one-year

time restriction applies. 42 Pa.C.S. § 9545(b)(1).    If a PCRA petition is

untimely, “neither this Court nor the trial court has jurisdiction over the

petition.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014)

(citation omitted); see also Commonwealth v. Chester, 895 A.2d 520,

522 (Pa. 2006).    “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, we affirmed Appellant’s judgment of sentence on

February 10, 2006, and it became final thirty days thereafter, or on March

12, 2006, since he did not seek review in our Supreme Court. Appellant had

until March 12, 2007, to file a timely PCRA petition, and the present March

7, 2016, is nearly nine years out of time. 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

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      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).

      Appellant invokes the newly-recognized constitutional right exception,

claiming that Montgomery rendered the new constitutional right announced

in Alleyne retroactive. Appellant’s claim is misguided. As the PCRA court

noted, Montgomery held that Miller was retroactive. Miller ruled that it

was unconstitutional to sentence a juvenile homicide offender to an

automatic term of life imprisonment without parole. Herein, Appellant was

not convicted of homicide, and a sentence of life imprisonment without

parole was not imposed upon him.      Additionally, the sentencing transcript

indicates that Appellant was approximately twenty years old when he

committed this offense. N.T. Sentencing, 9/29/04, at 191.    Since Appellant

was not a juvenile on August 16, 2002, Miller is inapposite for that

additional reason. See Commonwealth v. Lawson, 90 A.3d 1 (Pa.Super.

2014) (adult homicide offenders do not fall under Miller’s holding).

Montgomery, which discussed only the Miller case, did not retroactively

apply a constitutional right enjoyed by Appellant.

      Additionally, Alleyne, which Appellant invokes on appeal, is not

retroactive in the PCRA setting. Commonwealth v. Washington, 142 A.3d

810, 811 (Pa. 2016) (holding that Alleyne does not apply retroactively “to




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attacks   upon    mandatory   minimum   sentences   advanced   on   collateral

review.”).

      As the PCRA court did not abuse its discretion or commit an error of

law, we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/31/2017




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