J-A21040-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                          Appellee

                    v.

RICHARD C. KLINGER, II,

                          Appellant                      No. 273 EDA 2015


         Appeal from the PCRA Order entered December 26, 2014,
             in the Court of Common Pleas of Monroe County,
           Criminal Division, at No(s): CP-45-CR-0000109-1972


BEFORE: ALLEN, MUNDY, and FITZGERALD*, JJ.

MEMORANDUM BY ALLEN, J.:                                  FILED JULY 23, 2015

      Richard C. Klinger, II (“Appellant”) appeals from the order denying his

third petition for post-conviction relief filed pursuant to the Post Conviction

Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.

      The   pertinent    facts   and   partial   procedural   history   have   been

summarized as follows:

         In October 1971, the Commonwealth charged [Appellant]
         with the murder of Regina Prosser.          [Appellant] was
         certified as an adult in this Court, pled guilty to a general
         murder charge, and requested a degree of guilt hearing
         before a three judge panel. On February 9, 1972, Judges
         Williams, Davis, and Little found [Appellant] guilty of first
         degree murder and sentenced him to a term of life
         imprisonment. At the time of sentencing, [Appellant] was
         seventeen years old.




*Former Justice specially assigned to the Superior Court.
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        The Court denied [Appellant’s] Motion for Reconsideration
        of Verdict on July 3, 1973.        The Supreme Court of
        Pennsylvania affirmed this Court’s judgment of sentence
        by opinion dated May 13, 1975.         Commonwealth v.
        Klinger, 461 Pa. 606, 337 A.2d 569 (1975). [Appellant]
        filed multiple Post Conviction Hearing Act Petitions (“PCHA
        Petition”) which Judge Williams ultimately dismissed on
        September 7, 1982.        Judge Williams refused to find
        [Appellant’s] trial counsel ineffective and concluded that
        the Court did not err when it refused to suppress
        inculpatory statements made by [Appellant]. The Superior
        Court of Pennsylvania affirmed denial of [Appellant’s]
        PCHA Petition on May 11, 1984.

Commonwealth v. Klinger, 34 A.3d 228 (Pa. Super. 2011), unpublished

memorandum at 1-2.

     Appellant filed a second pro se petition for relief under the PCRA. After

appointing counsel and holding an evidentiary hearing, the PCRA court

denied Appellant’s petition.   On September 15, 2011, this Court affirmed

PCRA court’s order.     Klinger, supra.   On March 21, 2012, our Supreme

Court denied Appellant’s petition for allowance of appeal. Commonwealth

v. Klinger, 40 A.3d 1234 (Pa. 2012).

     On June 28, 2012, Appellant filed a motion for habeas corpus relief

based on the United States Supreme Court’s decision in Miller v. Alabama,

___ U.S. ___, 132 S.Ct. 2455 (2012). The PCRA court appointed counsel

and on August 10, 2012, Appellant filed his third PCRA petition to be

considered along with his petition for habeas corpus relief. Thereafter, the

matter was continued several times and then stayed until the Pennsylvania

Supreme Court reached its decision in Commonwealth v. Cunningham,

81 A.3d 1 (Pa. 2013).

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      Following our Supreme Court’s Cunningham decision, the PCRA court

instructed PCRA counsel to file an amended PCRA petition and petition for

habeas corpus relief, with PCRA counsel to address the high court’s ruling in

Cunningham.       PCRA counsel complied.      On August 22, 2014, the PCRA

court held a hearing, and both parties filed supplemental legal memoranda.

By order entered December 26, 2014, the PCRA court denied both petitions.

This timely appeal followed.     Both Appellant and the PCRA court have

complied with Pa.R.A.P. 1925.

      Appellant raises the following issue:

         Whether the [PCRA] court erred in denying Appellant’s
         PCRA Petition on jurisdictional grounds since Appellant’s
         petition falls within the exception set forth in 42 Pa.C.S.A.
         §9545(b)(1)(iii).

Appellant’s Brief at 5.

      Our standard of review regarding an order dismissing a petition under

the PCRA is whether the determination of the PCRA court is supported by the

evidence of record and is free of legal error.   Commonwealth v. Halley,

870 A.2d 795, 799 n.2 (Pa. 2005).      The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

Moreover, a PCRA court may decline to hold a hearing on the petition if the

PCRA court determines that the petitioner’s claim is patently frivolous and is




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without a trace of support either in the record or from other evidence.

Commonwealth v. Jordan, 772 A.2d 1011 (Pa. Super. 2001).

      Appellant challenges the PCRA court’s determination that his latest

PCRA petition was untimely. The timeliness of a post-conviction petition is

jurisdictional.   Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa.

2010) (citation omitted).     Thus, if a PCRA petition is untimely, neither an

appellate court nor the PCRA court has jurisdiction over the petition.             Id.

“Without jurisdiction, we simply do not have the legal authority to address

the substantive claims” raised in an untimely petition. Id.

      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

becomes final unless the petition alleges, and the petitioner proves, an

exception to the time for filing the petition. Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under

these exceptions, the petitioner must plead and prove that: “(1) there has

been interference by government officials in the presentation of the claim; or

(2)   there   exists   after-discovered    facts   or   evidence;   or   (3)   a   new

constitutional right has been recognized.” Commonwealth v. Fowler, 930

A.2d 586, 591 (Pa. Super. 2007) (citations omitted).                A PCRA petition

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

the date the claim first could have been presented.” Gamboa-Taylor, 753

A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to


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the time restrictions of the PCRA must be pled in the petition, and may not

be raised for the first time on appeal.         Commonwealth v. Burton, 936

A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not

raised before the lower court are waived and cannot be raised for the first

time on appeal.”).

      It is beyond dispute that Appellant filed his latest PCRA petition

decades late. Thus, Appellant’s third petition is patently untimely unless he

has satisfied his burden of pleading and proving that one of the enumerated

exceptions applies. See Commonwealth v. Beasley, 741 A.2d 1258, 1261

(Pa. 1999).

      Appellant has failed to prove the applicability of any of the exceptions

to the PCRA’s time restrictions. In support of his claim, Appellant makes two

arguments. Relying on Miller’s companion case, Appellant first argues that

the United States Supreme Court has held that Miller should be applied

retroactively.    Alternatively, Appellant argues that, in Cunningham, our

Supreme Court “only denied the retroactive application of Miller, on federal

grounds    thereby     leaving   the     opportunity   for   Miller   to   be   applied

retroactively    to   individuals   on    collateral   review   based      on   broader

retroactivity principles based on Pennsylvania [constitutional] norms.”

Appellant’s Brief at 20.

      In rejecting Appellant’s claims, the PCRA court reasoned:

             [I]n his statement of matters complained of on appeal,
          [Appellant] asserts that this Court erred in not applying

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          the rule in Miller v. Alabama, retroactively since the
          United States Supreme Court has retroactively applied its
          decision in . . . Miller to a case on post-conviction review.
          However, we have been unable to find any post-Miller
          decision in which the United States Supreme Court has
          applied the right it announced in Miller retroactively on
          collateral review, and [Appellant] throughout this matter
          has been unable to cite us to any such decision. While
          [Appellant’s] brief mentions Jackson v. Hobbs, the
          companion case to Miller, and it is likely that the
          averment quoted from his [Pa.R.A.P.] 1925(b) Statement
          was meant to refer to Jackson since that case arose on
          collateral review, in Cunningham our Supreme Court
          specifically rejected the Jackson-based argument posited
          by [Appellant] and held that Jackson does not compel
          that the holding in Miller be applied retroactively.
          Cunningham, 81 A.3d at 9.

PCRA Court Opinion, 3/18/15, at 5-6 (citations omitted).

       Our review of recent precedent supports the PCRA court’s discussion of

Miller and its retroactivity.            See generally, Cunningham, supra,

Commonwealth           v.    Reed,      107    A.3d   137   (Pa.   Super.   2014);

Commonwealth v. Seskey, 86 A.3d 237 (Pa. Super. 2014), appeal denied,

101 A.3d 103 (Pa. 2014); compare Commonwealth v. Christina, 114

A.3d 419 (Pa. Super. 2015).               Thus, Appellant’s first claim regarding

retroactivity is meritless.1

____________________________________________


1
  Appellant also cites to the federal court’s decision in Songster v. Beard,
35 F.Supp.3d 657 (E.D.Pa. 2014), in which the district court held that Miller
applied retroactively to cases on collateral review. Because federal decisions
that construe Pennsylvania law are not binding precedent, Commonwealth
v. Bennett, 57 A.3d 1185, 1203 (Pa. 2012), this decision does not affect
our decision.




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      Appellant did not sufficiently raise a separate state constitutional basis

for retroactivity in his Pa.R.A.P. 1925(b) statement. Thus, the PCRA court

did not address the alternative argument Appellant raises within his brief,

and the claim is waived.       See Pa.R.A.P. 1925(b)(4)(vii) (providing that

issues not raised in the Pa.R.A.P. 1925(b) statement are waived).

      In sum, Appellant’s PCRA petition is facially untimely, and he has failed

to meet his burden of proof with regard to any exception to the timeliness

requirements of the PCRA. We therefore affirm the PCRA court’s denial of

Appellant’s petition for post-conviction relief.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/23/2015




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