J-S40024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 3354 EDA 2015


               Appeal from the PCRA Order October 22, 2015
             In the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0009696-1990


BEFORE: BOWES, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY SOLANO, J.:                         FILED AUGUST 19, 2016

      Appellant, Vander K. Clayborne, appeals pro se from the order

dismissing Appellant’s fourth petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, for lack of jurisdiction.   We

affirm.

      The PCRA court summarized the pertinent factual and procedural

history of this case as follows:

                  On October 3, 1991, [Appellant] entered a
            guilty plea to murder generally for the killing of
            Jeffrey Savage and to aggravated assault for
            shooting Raymond Craig. The Honorable Frank T.
            Hazel held a non-jury degree of guilt hearing from
            October 7, 1991 – October 9, 1991 and found
            [Appellant] guilty of first degree murder. A jury was
            empaneled for the death penalty phase but was
            unable to reach a unanimous verdict. As a result, on
            September 14, 1992, [Appellant] was sentenced to a
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          term of life imprisonment plus 78-240 months’
          incarceration.

                [Appellant] filed a direct appeal and on August
          9, 1993, the Pennsylvania Superior Court affirmed
          [Appellant’s] judgment of sentence by memorandum
          opinion. On December 15, 1994, the Pennsylvania
          Supreme Court denied [Appellant’s] petition for
          allowance of appeal.

                 On April 18, 1995, [Appellant] filed a PCRA
          petition. Counsel was appointed and on May 22,
          1995, filed an amended petition. An evidentiary
          hearing took place on June 12, 1995. The PCRA
          court denied the petition.

                 On July 28, 2011, [Appellant] filed a petition
          entitled “Petition for Writ of Habeas Corpus and
          Declaratory Judgment.”      The court treated the
          petition as a second PCRA. On August 22, 2011, the
          PCRA court filed its notice of intent to dismiss
          without a hearing based upon its finding that the
          petition was untimely and that [Appellant] failed to
          satisfy any of the exceptions to the time bar.
          [Appellant] responded to the notice of intent to
          dismiss on September 28, 2011 and the petition was
          dismissed on September 29, 2011.

                [Appellant] filed a notice of appeal on
          December 13, 2011.       The Pennsylvania Superior
          Court affirmed the dismissal on December 12, 2012.
          On January 17, 2013, [Appellant] filed an application
          for reconsideration, which was denied on March 14,
          2013.

                 On July 25, 2014, [Appellant] filed this instant
          Petition, entitled “Petition for Writ of Habeas Corpus,
          with Motion to Vacate Waivers and Judgment of
          Conviction/Sentence.” The case was reassigned to
          this Court. [Appellant] raised claims of ineffective
          assistance of counsel as well as an illegal sentence
          claim; therefore, this Court treated the motion as
          [Appellant’s] third PCRA petition. On September 15,
          2014, this Court issued a notice of intent to dismiss

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           without a hearing.         [Appellant] responded on
           October 7, 2014. On October 8, 2014, this Court
           issued an Order dismissing the Petition. [Appellant]
           filed a notice of appeal on November 6, 2014.

                 On June 8, 2015, the Pennsylvania Superior
           Court affirmed the [PCRA c]ourt’s dismissal of
           Appellant’s untimely third PCRA petition. On June
           24, 2015, Appellant filed an Application for
           Reargument/Reconsideration, which was denied on
           August 6, 2015.

                  On August 17, 2015, a mere eleven days after
           the    Superior    Court’s   denial    of    Appellant’s
           reconsideration application, Appellant filed a “Motion
           to Renew PCRA/Habeas Petition” which this Court
           treated as his fourth PCRA petition. Appellant raises
           the exact same issues that were in his third PCRA
           petition but adds that he is entitled to relief pursuant
           to Commonwealth v. Hopkins, 117 A.2d 247 (Pa.
           2015).

                 This Court issued a notice of intent to dismiss
           on August 18, 2015. [Appellant] wrote to this Court
           and asked for additional time to file a response,
           which this Court granted. Appellant filed a response
           on September 8, 2015. On October 22, 2015, this
           Court dismissed the Petition. On November 6, 2015,
           Appellant filed a notice of appeal.

PCRA Court Opinion, 11/12/15, at 1-3.     As     noted    above,      Appellant

unsuccessfully sought post-conviction relief in prior PCRA petitions filed in

1995, 2011, and 2014. This is Appellant’s fourth PCRA petition.

     On this appeal, Appellant raises the following issues, as stated:

           1. Did the lower court deny Appellant due process by
              not allowing Appellant a hearing and-or assistance
              of counsel, thereby violating his rights secured by
              the U.S. Constitution, Amendments 1, 5, 6, 14?




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            2. May the state legislature or courts suspend the
               writ of habeas corpus and did they deny Appellant
               due process in violation of Amendments 1, 5, 14
               and Article 1, § 9(2) and Pennsylvania
               Constitution Article 1, § 14?

Appellant’s Brief at 4.

      The PCRA court dismissed Appellant’s petition for lack of jurisdiction

because the petition was not filed with the time limits set forth in the PCRA.

In fact, the court noted that Appellant’s fourth PCRA petition “is facially

untimely by approximately twenty years.” PCRA Court Opinion, 11/12/15, at

4.   We agree.

      This Court’s standard of review regarding an order dismissing a

petition under the PCRA is “to determine whether the determination of the

PCRA court is supported by the evidence of record and 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. Barndt, 74 A.3d

185, 191-92 (Pa. Super. 2013) (internal citations omitted).

      The   timeliness    of   a   post-conviction   petition   is   jurisdictional.

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

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

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

three statutory exceptions to these time limitations set forth in Section




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9545(b)(1) of the statute.1        See 42 Pa. C.S. § 9545(b).       A PCRA petition

invoking one of these statutory exceptions must “be filed within 60 days of

the date the claims could have been presented.”            Hernandez, 79 A.3d at

651-52; see also 42 Pa.C.S. § 9545(b)(2). Any asserted exceptions to the

time limitations must be alleged in the petition to the PCRA court; they may

not be raised for the first time on appeal. Commonwealth v. Burton, 936

A.2d 521, 525 (Pa. Super. 2007)

        Here, Appellant’s judgment of sentence became final on March 15,

1995 (ninety days after our Supreme Court denied his petition for allowance

of appeal). See Commonwealth v. Clayborne, No. 3380 EDA 2014, slip

op. at 6 (Pa. Super. June 8, 2015).              Appellant’s latest PCRA petition is

____________________________________________


1
    The exceptions to the timeliness requirement are:

        (i) the failure to raise the claim previously was the result of
        interference of 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).




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therefore patently untimely unless he has satisfied his burden of pleading

and proving that one of the enumerated exceptions applies.                 See

Hernandez.

      As the PCRA court noted, Appellant’s latest PCRA petition “fail[s] to

plead any facts that, if proven, would satisfy any of the exceptions to the

timeliness requirement.” PCRA Court Opinion, 11/12/15, at 5. In particular,

the petition fails to plead any ground under Section 9545(b)(1) that would

entitle Appellant to litigate the two issues that he frames in his brief, which

he has filed twenty years after his judgment of sentence became final.

      In his brief, Appellant asserts that he is entitled to post-conviction

relief because he was illegally sentenced in light of       Alleyne v. United

States, ___ U.S. ___, 133 S.Ct. 2151 (2015) (any fact that by law increases

a mandatory minimum sentence must be treated as an element of the

offense and found by a jury beyond a reasonable doubt).           He also cites

Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015) (under Alleyne,

mandatory minimum sentencing aspects of Section 6317 of Crimes Code are

constitutionally infirm).   See Appellant’s Brief at 5.   But the constitutional

rights recognized in those decisions may be a basis for PCRA relief only if the

decisions apply retroactively.    42 Pa.C.S. § 9545(b)(1)(iii).   The Supreme

Court of Pennsylvania has held that “Alleyne does not apply retroactively to

cases pending on collateral review,” and that a sentence imposed in violation

of Alleyne is not in fact “illegal.” Commonwealth v. Washington, ___


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A.3d ____, 2016 WL 3909088, *8 (Pa. July 19, 2016).             That holding

necessarily disposes of “illegal sentencing” claims under Hopkins as well.

See id. at *1.    Accordingly, Appellant’s citation to Alleyne and Hopkins

cannot save his petition from the PCRA’s jurisdictional bar.

      Based on the foregoing, the PCRA court correctly concluded that it

lacked jurisdiction to consider Appellant’s latest PCRA petition. We therefore

affirm the PCRA court’s order denying Appellant post-conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/2016




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