J-S90042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

HOMER RICHARD CLIFFORD SR.,

                            Appellant                No. 1346 EDA 2016


                   Appeal from the PCRA Order April 11, 2016
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0003562-2011


BEFORE: OTT, J., SOLANO, J. AND JENKINS, J.

MEMORANDUM BY JENKINS, J.:                      FILED NOVEMBER 23, 2016

        Homer Richard Clifford Sr. (“Appellant”) appeals pro se from the order

entered in the Chester County Court of Common Pleas, which dismissed as

untimely his third petition filed for relief pursuant to the Post Conviction

Relief Act (“PCRA”).1 We affirm.

        This Court set forth the relevant facts and procedural history of this

appeal in a non-precedential memorandum affirming the order denying

Appellant’s second PCRA petition as follows:

          On July 7, 2011, the victim, then 21 years old, reported to
          the Coatesville Police Department that she had been
          sexually assaulted by [Appellant], her grandfather, on at
          least two occasions, when she was under the age of 13

____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
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          years old.[2] On April 30, 2012, [Appellant], represented by
          retained counsel, entered a guilty plea to the above-stated
          charges. The trial court deferred sentencing and ordered
          [Appellant] to undergo an assessment by the Pennsylvania
          Sexual Offenders Assessment Board (“SOAB”) to
          determine whether he was a sexually violent predator
          under Megan’s Law.2
              2
                We note that, effective December 20, 2012,
              Megan’s Law was replaced by the Sexual Offenders
              Registration and Notification Act (“SORNA”). See 42
              Pa.C.S. §§ 9799.10-9799.41 (as amended 2011,
              Dec. 20, P.L. 446, No. 111, § 12).

          On October 11, 2012, the trial court held a combined
          Megan’s Law/sentencing hearing. [Appellant] did not
          contest the findings of the SOAB evaluator as outlined in
          his assessment, and accordingly, the trial court determined
          [Appellant] met the criteria for classification as a sexually
          violent predator. See N.T. 10/11/2012, at 3-7. The court
          then proceeded to sentence [Appellant] to two consecutive
          mandatory minimum terms of five to 10 years’
          imprisonment3 for [each] charge of IDSI, and two
          concurrent sentences of six to 12 months’ imprisonment
          for the charges of endangering the welfare of a child and
          corruption of minors. Accordingly, the court imposed an
          aggregate sentence of 10 to 20 years’ imprisonment.
              3
                Although not specified in the record, it appears the
              mandatory minimum sentences were imposed
              pursuant to 42 Pa.C.S. § 9718 (Sentences for
              offenses against infant persons).

          [Appellant] did not file a post-sentence motion within 10
          days of sentencing. Rather, on November 13, 2012,
          [Appellant] filed a petition for leave to file post sentence
          motions nunc pro tunc.4 The court initially granted the
          petition, and [Appellant] filed a post-sentence motion
          challenging the validity of his plea and the discretionary
          aspects of his sentence. Thereafter, on November 26,
____________________________________________


2
    Appellant was born on October 23, 1946.



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       2012, retained defense counsel filed a petition to withdraw
       so that [Appellant] could apply for a public defender. The
       court granted the petition to withdraw on January 7, 2013,
       and appointed the Public Defender’s Office to represent
       [Appellant].


          4
            Post-sentence motions must be filed “no later than
          10 days after the imposition of sentence.”
          Pa.R.Crim.P. 720(A)(1). Here, [Appellant] sought
          permission to file a post-sentence motion nunc pro
          tunc on the thirty-third day after the imposition of
          sentence. However, the 30th day, November 10,
          2012, fell on a Saturday, and Monday, November 12,
          2012, was a court observed holiday, namely,
          Veteran’s Day. Therefore, if [Appellant] had filed a
          notice of appeal on November 13, 2012, it would
          have been timely filed.

          We note the trial court expressly granted
          [Appellant]’s petition to file a post-sentence motion
          nunc pro tunc on November 13, 2012, which was, as
          noted above, the 30th day after sentencing. When a
          trial court expressly grants nunc pro tunc relief
          within the 30-day period following the imposition of
          sentence, the post-sentence motion is considered
          timely filed. See Commonwealth v. Dreves, 839
          A.2d 1122 (Pa. Super. 2003) (en banc). However,
          as explained infra, the trial court later designated the
          post sentence motion as a PCRA petition. As such,
          unfortunately, any relief to which [Appellant] may
          have been entitled is now lost since the instant
          appeal is from an untimely second PCRA petition.
          See infra.

       However, on January 11, 2013, the trial court entered an
       order stating that [Appellant]’s putative post-sentence
       motion was “in fact [Appellant’s] first PCRA petition.”
       Order, 1/11/2013 (footnote omitted). The court directed
       counsel to file either an amended petition or a petition for
       leave to withdraw pursuant to Turner/Finley,5 within 60
       days. See id. Counsel complied with the court’s directive,
       and filed a petition to withdraw and accompanying
       Turner/Finley “no merit letter” on March 14, 2013. On

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        April 24, 2013, the PCRA court sent [Appellant] notice of
        its intent to dismiss his petition without first conducting an
        evidentiary hearing pursuant to Pa.R.Crim.P. 907.
        [Appellant] did not file a response, and, accordingly, on
        June 21, 2013, the court entered an order dismissing the
        PCRA petition. Thereafter, [Appellant] filed a timely, pro se
        appeal to this Court; however, the appeal was dismissed
        on November 26, 2013, when [Appellant] failed to file a
        brief. See Order, 11/26/2013.
           5
             Commonwealth v. Turner, 544 A.2d 927 (Pa.
           1988); Commonwealth v. Finley, 550 A.2d 213
           (Pa.Super.1988) (en banc).

        Nearly one year later, on October 10, 2014, [Appellant]
        filed a pro se document titled, “Legal Letter of Notice of
        Withdraw of Guilty Plea,” in which he asserted, inter alia,
        (1) he had newly discovered evidence that the detective
        who questioned him was involved in a corruption scandal,
        and (2) the detective had tricked him into going to the
        police station without an attorney. The PCRA court
        appointed counsel on October 27, 2014, and directed
        counsel to file either an amended petition or a “no merit”
        letter within 60 days. However, on November 6, 2014,
        [Appellant] filed another pro se motion to withdraw his
        guilty plea.

        Thereafter, on December 23, 2014, appointed counsel filed
        a petition to withdraw and accompanying Turner/Finley
        “no merit” letter. [Appellant] responded by filing a pro se
        objection to counsel’s petition to withdraw, and asserting,
        inter alia, the illegality of his mandatory minimum
        sentences under Alleyne v. United States, 133 S.Ct.
        2151 (2013). On February 4, 2015, the PCRA court, once
        again, notified [Appellant] of its intent to dismiss his
        petition pursuant to Rule 907…. On March 10, 2015, the
        PCRA court dismissed [Appellant]’s petition as untimely
        filed[.]

Commonwealth v. Clifford, 910 EDA 2015, unpublished memorandum at

2-6 (Pa.Super. filed November 30, 2015) (footnote omitted). On November

30, 2015, this Court affirmed the order dismissing Appellant’s PCRA petition.

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       On February 8, 2016, Appellant filed a document entitled “Petition for

Writ of Habeas Corpus Nunc Pro Tunc/(Amended).” On March 9, 2016, the

PCRA court properly treated Appellant’s filing as a PCRA petition 3 and issued

notice of its intent to dismiss the petition without a hearing pursuant to

Pa.R.Crim.P. 907.       Appellant filed a response to the notice on March 28,

2016, and on April 11, 2016, the PCRA court dismissed Appellant’s petition.

On April 27, 2016, Appellant timely filed a notice of appeal.

       Appellant raises the following issues for our review:

          HAS THE PCRA COURT CONTINUED TO ERROR IN
          DISMISSING MY APPELLANT CLAIMS OF INEFFECTIVENESS
          OF ASSISTANCE OF COUNSEL OF ATTORNEY DANIEL
          ARMSTRONG, FROM THE INCEPTION OF HIS SERVICES
          UNTIL HIS ABANDONMENT OF ME, THE SAID APPELLANT
          AT THE END OF THE SENTENCING HEARING?

          HAS THE PCRA COURT CONTINUED TO ERROR                    IN
          DENYING THAT THE ACTIONS OR OMISSIONS                    OF
          ASSISTANCE OF COUNSEL AND THE COURT AND                 ITS
          OFFICERS, HAS BEEN JUDICIALLY PREJUDICIAL TO             ME
          THE SAID APPELLANT, IN FAILING TO PROTECT                MY
          CONSTITUTIONAL RIGHT OF DIRECT APPEAL.

          HAS THE PCRA COURT CONTINUED TO ERROR BY
          CHARGING SAID APPELLANT WITH UNTIMELINESS, WHILE
          AT THE SAME TIME, THE TRIAL/PCRA COURT’S PUBLIC
          DEFENDER WAS THE SAID APPELLANT’S COUNSEL
          DURING THE 60 DAY WINDOW AND FAILED TO PROTECT
          MY CONSTITUTIONAL RIGHT OF DIRECT APPEAL?


____________________________________________


3
 “[A]ny motion filed after the finality of a sentence that raises an issue that
can be addressed under the PCRA is to be treated as a PCRA petition.”
Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa.Super.2013).



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       HAS THE PCRA COURT CREATED A DOUBLE STANDARD BY
       ACKNOWLEDGING     THAT   THERE  WERE    FACTUAL
       DESCRIPTIONS OF EVENTS AND CIRCUMSTANCES IN MY
       CASE, INVOLVING INTERACTION WITH THE SAID
       ASSISTANCE OF COUNSEL AND YET, DISMISS AS NOT
       BEING OF MATERIAL MERIT?

       HAS THE PCRA COURT ERRORED IN FAILING TO
       ACKNOWLEDGE THAT I, SAID APPELLANT WAS DEPRIVED
       THE STATUTORY RIGHT TO HAVE COUNSEL AND
       WITNESSES AND TESTIFY AND BE HEARD DURING THE
       S.O.A.B. PORTION OF THE SENTENCING HEARING OF
       WHICH THERE WAS NONE IN VIOLATION OF (42 PA.C.S.
       9791.1), NUMERAL POINTS 16 THROUGH 23?

       HAS THE PCRA COURT CONTINUE TO CRY UNTIMELINESS
       TO MASK THE ERROR OF THE TRIAL/PCRA COURT TO NOT
       PROTECT SAID APPELLANT’S CONSTITUTIONAL DIRECT
       APPEAL RIGHT AND ALSO TO PREVENT ALL TRUTH FROM
       BEING BROUGHT FORTH THAT WOULD CHALLENGE THE
       LEGALITY OF MY CONVICTION AND SENTENCE?

       ALSO THAT THE TRIAL COURT AND THE PCRA COURTS
       CONTINUE TO DENY ANY MISCARRIAGE OF JUSTICE,
       PREJUDICE, AND DENIAL OF ANY CONSTITUTIONAL
       SAFEGUARD VIOLATIONS OF THE 5TH 6TH AND 14TH
       AMENDMENTS OF THE UNITED STATES CONSTITUTION
       AND ARTICLE 1, SECTION 9 OF THE PENNSYLVANIA
       CONSTITUTION? 42 PA.C.S. 9543(A)(2)(i).

       FURTHERMORE, UNDER THE NEW SUBSTANTIVE RULE OF
       LAW CONCERNING SENTENCES THAT THE STATE
       IMPOSES,   THAT    THE   CONSTITUTION    FORBIDS
       SUBSTANTIVE CONSTITUTIONAL RULES INCLUDE, “RULES
       FORBIDDING CRIMINAL PUNISHMENT OF CERTAIN
       PRIMARY CONDUCT” AND RULES PROHIBITING CERTAIN
       CATEGORY OF PUNISHMENT       FOR A CLASS OF
       DEFENDANTS BECAUSE OF THEIR STATUES OF OFFENSE”.
       THEREFORE, I WISH TO PRESERVE FOR APPEAL, OR SUA
       SPANTE   BY    THIS    HONORABLE   COURT,    THE
       CONSTITUTIONAL CHALLENGE TO THE MANDATORY
       MINIMUM SENTENCE IMPOSED ON ME THE APPELLANTS
       ILLEGAL  AND    UNCONSTITUTIONAL.  I   WISH   TO
       CHALLENGE UNDER COLLATERAL REVIEW THE LEGALITY

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         OF MY TIME BARRED SENTENCE AS ILLEGAL UNDER:
         MONTGOMERY VS. LOUISIANA (2016); MILLER VS.
         UNITED STATES (2013); COMMONWEALTH VS.
         NEWMAN (2014); AND COMMONWEALTH VS. WOLFE
         (2014). AN UNCONSTITUTIONAL ILLEGAL SENTENCE IS A
         NON-WAIVER ABLE ISSUE.

Appellant’s Brief at 1-2 (verbatim).

      Before we address the merits of Appellant’s claims, we must determine

whether his PCRA petition was timely.        The timeliness of a PCRA petition

implicates the jurisdiction of both this Court and the PCRA court.

Commonwealth v. Williams, 35 A.3d 44, 52 (Pa.Super.2011), appeal

denied, 50 A.3d 121 (Pa.2012).         “Pennsylvania law makes clear that no

court has jurisdiction to hear an untimely PCRA petition.”     Id. To “accord

finality to the collateral review process[,]” the PCRA “confers no authority

upon [appellate courts] to fashion ad hoc equitable exceptions to the PCRA

timebar[.]” Commonwealth v. Watts, 23 A.3d 980, 983 (Pa.2011). With

respect to jurisdiction under the PCRA, this Court has further explained:

         The most recent amendments to the PCRA...provide a
         PCRA petition, including a second or subsequent petition,
         shall be filed within one year of the date the underlying
         judgment becomes final. A judgment is deemed 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.

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010)

(citations and quotations omitted), appeal denied, 20 A.3d 1210 (Pa.2011);

see also 42 Pa.C.S. § 9545(b). This Court may review a PCRA petition filed


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more than one year after the judgment of sentence becomes final only if the

claim falls within one of the following three statutory exceptions, which the

petitioner must plead and prove:

            (i) the failure to raise the claim 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).   These “exceptions to the time bar must be pled in

the PCRA petition, and may not be raised for the first time on appeal.”

Commonwealth v. Burton, 936 A.2d 521, 525 (Pa.Super.2007). Further,

if a petition pleads one of these exceptions, the petition will not be

considered unless it is “filed within 60 days of the date the claim could have

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

      Here, as this Court noted in our non-precedential memorandum

affirming the dismissal of Appellant’s second PCRA petition, Appellant’s

judgment of sentence became final on November 13, 2012, when the time

period in which he could have filed a notice of appeal with this Court expired.

See 42 Pa.C.S. § 9545(b)(3). Thus, he had until November 13, 2013 to file


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a timely PCRA petition.       The present petition, filed February 8, 2016, is

patently untimely.    Thus, we must determine whether Appellant has pled

and proved any exceptions to the PCRA time limitation.

      Appellant attempts to invoke the constitutional right exception

provided by 42 Pa.C.S. § 9545(b)(1)(iii), but his attempt fails.

      Appellant first alleges he is entitled to relief based on Montgomery v.

Louisiana, __ U.S. __, 2016 WL 280758 (filed January 25, 2016) and

Miller v. Alabama, __ U.S. __, 132 S.Ct. 2455 (2012). In Miller, the

Supreme Court held that a life sentence without the possibility of parole for

juvenile offenders violates the constitutional right provided by the Eighth

Amendment of the United States Constitution to be free from cruel and

unusual punishment.         Miller, 132 S.Ct. at 2469.      In Montgomery, the

Supreme Court held that this new substantive rule applies retroactively to

cases on collateral review.      Montgomery, 136 S.Ct. at 724.           Neither of

these cases, nor any other United States Supreme Court or Pennsylvania

Supreme Court case, held that a lengthy sentence for an adult offender

violates   one’s   Eighth    Amendment     constitutional   right   or   that   such

substantive right applies retroactively.     Thus, Appellant is not entitled to

relief under this theory.

      Next, Appellant argues that his sentence included an illegal mandatory

minimum and should be vacated pursuant to Commonwealth v. Newman,

99 A.3d 86 (Pa.Super.2014) (en banc), and Commonwealth v. Wolfe, 106


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A.3d 800, 801 (Pa.Super.2014). As Appellant notes, questions regarding the

legality of a sentence “are not waivable and may be raised sua sponte by

this   Court.”    Commonwealth        v.    Watley,   81   A.3d   108,   118

(Pa.Super.2013) (en banc), appeal denied, 95 A.3d 277 (Pa.2014).           In

Alleyne v. United States, ___ U.S. ___, 133 S.Ct, 2151, 186 L.Ed.2d 314

(2013), the Supreme Court of the United States held that “[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., 133 S.Ct.

at 2155.    Issues pertaining to Alleyne directly implicate the legality of

sentence. Wolfe, 106 A.3d at 801. In Newman, this Court held that the

preponderance of the evidence standard in section 42 Pa.C.S. § 9712.1(c) is

unconstitutional under Alleyne.

       Unfortunately for Appellant, to qualify for the constitutional right

exception to the PCRA time limitation, Appellant must plead and prove that

the Supreme Court of Pennsylvania or the Supreme Court of the United

States has recognized a constitutional right and that the right “has been

held by that court to apply retroactively.”     42 Pa.C.S. § 9545(b)(1)(iii)

(emphasis added).     In Commonwealth v. Washington, 142 A.3d 810

(Pa.2016), the Supreme Court of Pennsylvania held that Alleyne does not

apply retroactively to cases pending on collateral review.        Neither the

Supreme Court of Pennsylvania nor the Supreme Court of the United States

has held that Alleyne applies retroactively.      Thus, Appellant’s petition


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remains time-barred, and the PCRA court correctly determined it lacked

jurisdiction to hear it.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/23/2016




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