J-S60045-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                  Appellee                :
          v.                              :
                                          :
JEFFREY DAVID CLAPSADL,                   :
                                          :
                  Appellant               :   No. 330 MDA 2018

                   Appeal from the PCRA Order January 9, 2018
                  in the Court of Common Pleas of Berks County
               Criminal Division at No(s): CP-06-CR-0002362-1994

BEFORE:        SHOGAN, J., NICHOLS, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                     FILED APRIL 03, 2019

     Jeffrey David Clapsadl (Appellant) appeals pro se from the January 9,

2018 order dismissing his petition for writ of habeas corpus as an untimely-

filed petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546. We affirm.

            Following a jury trial, [Appellant] was sentenced to life
     imprisonment plus three and one-half to seven years for first
     degree murder, aggravated assault, possessing an instrument of
     crime and abuse of a corpse. The evidence at trial established
     that [Appellant] killed Renee Layser, the mother of his unborn
     child, with a single shotgun blast to the back of her head from a
     distance of two feet. He then transported her body to a wooded
     area and buried it in a shallow grave.

           A direct appeal was filed with this court on May 9, 1995.
     We affirmed the judgment of sentence on July 16, 1996. See
     Commonwealth v. Clapsadl, [685 A.2d 207 (Pa. Super. 1996)
     (unpublished)]. On August 12, 1996, a petition for allowance of
     appeal was filed with our Supreme Court. The petition was
     denied on April 7, 1997. [Commonwealth v. Clapsadl, 692
     A.2d 562 (Pa. 1997)].


*Retired Senior Judge assigned to the Superior Court.
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Commonwealth v. Clapsadl, 747 A.2d 410 (Pa. Super. 1999) (unpublished

memorandum). Since then, Appellant has filed two PCRA petitions, both of

which resulted in no relief.

      Appellant filed the petition at issue herein on March 21, 2016.

Although styled as a petition for writ of habeas corpus, the PCRA court

treated the March 21, 2016 filing as Appellant’s third PCRA petition. The

court dismissed the petition by order dated January 9, 2018, and on

February 12, 2018, Appellant timely filed a notice of appeal.1 Both Appellant

and the PCRA court complied with Pa.R.A.P. 1925.      We review the court’s

January 9, 2018 order mindful of the following.

      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

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

that an exception to the time for filing the petition is met.     42 Pa.C.S.

§ 9545.   “In addition, [t]he PCRA limits the reach of the exceptions by

providing that the exceptions must be pled within sixty days of the date the



1
  Appellant’s notice of appeal was not docketed until February 12, 2018,
more than thirty days after the PCRA court dismissed Appellant’s petition.
However, “the prisoner mailbox rule provides that a pro se prisoner’s
document is deemed filed on the date he delivers it to prison authorities for
mailing.” Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa. Super. 2011).
Thus, for the purposes of this appeal, Appellant’s notice of appeal, dated
January 31, 2018, is timely.




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

Commonwealth v. Geer, 936 A.2d 1075, 1077 (Pa. Super. 2007)

(quotation marks omitted; brackets in original).

        It is clear that Appellant’s petition is facially untimely; his judgment of

sentence became final in 1997. However, Appellant alleges that his petition

is based upon a change in the law, referencing Miller v. Alabama, 567 U.S.

460 (2012) and Montgomery v. Louisiana, __U.S.__, 136 S.Ct. 718

(2016).3 Appellant’s Brief at 6-8. Thus, it appears that Appellant is alleging



2
 Although inapplicable to this appeal, we note that subsection 9545(b)(2)
was amended on October 24, 2018, effective in 60 days (December 24,
2018), extending the time for filing from sixty days of the date the claim
could have been presented, to one year. The amendment applies to claims
arising on December 24, 2017, or thereafter. See Act 2018, Oct. 24, P.L.
894, No. 146, § 3.
3
 On December 18, 2018, this Court filed a memorandum affirming the PCRA
court’s order because, inter alia, Appellant did not file his petition within the
requisite 60 days following the change in the law and thus, Appellant’s
petition was untimely filed. Commonwealth v. Clapsadl, 330 MDA 2018
(Pa. Super. 2018) (unpublished memorandum). See also Commonwealth
v. Secreti, 134 A.3d 77, 82 (Pa. Super. 2016) (holding the date of the
Montgomery v. Louisiana decision is the benchmark “for purposes of the
60-day rule” in cases involving the Miller decision). On January 3, 2019,
Appellant filed a motion for reconsideration, averring that this Court’s
memorandum cited the incorrect date for when his petition for habeas
corpus was filed. Our own independent review of the record confirmed that
the date cited in the memorandum, August 24, 2016, was incorrect, and
Appellant’s petition was actually filed on March 21, 2016, within 60 days
following the Montgomery v. Louisiana decision. While this error did not
affect the ultimate disposition, we nonetheless granted reconsideration to
correct the memorandum. For the reasons that follow, Appellant’s claim
does not entitle him to relief.




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that the following timeliness exception applies: “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)(iii).

      In Miller, the Court held that the application of mandatory sentences

of life imprisonment without possibility of parole to individuals who were

juveniles at the time they committed homicides was unconstitutional.

Miller, 567 U.S. at 465.       In Montgomery, decided in January 2016, the

Court determined that Miller announced a new substantive rule of law that

applies retroactively. Montgomery, 136 S. Ct. at 736.

      Appellant was not a juvenile at the time of the murder; rather, he was

23 years old. See Appellant’s Brief at 4 (stating Appellant “was 23 years old

at the time of the offense”).     Therefore, Miller and Montgomery are not

applicable to Appellant’s petition.   See Commonwealth v. Furgess, 149

A.3d 90, 94 (Pa. Super. 2016) (holding that Furgess, who was 19 at the

time of the murder could not rely on Miller “to bring [himself] within the

time-bar exception in Section 9545(b)(1)(iii)”).      Furthermore, we find

Appellant’s attempt to advocate that the holding in Miller should be

expanded to include individuals like himself is likewise unsuccessful.   We

have previously addressed and rejected a similar argument regarding the

applicability of Miller.     See Commonwealth v. Montgomery, 181 A.3d



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359, 366 (Pa. Super. 2018) (en banc) (“Appellant’s argument attempts to

extend Miller to those adults whose brains were not fully developed at the

time of their offense.   This argument fails, however, because a contention

that a newly-recognized constitutional right should be extended to others

does not [satisfy the new constitutional rule exception to the PCRA’s

timeliness requirement.]”). (citation and quotation marks omitted; brackets

in original).   See also Commonwealth v. Lee, ___ A.3d ___, 2019 WL

986978 (Pa. Super. filed March 1, 2019).4

      Additionally, Appellant’s attempt to couch this claim as one in violation

of the equal protection clause is unavailing. See Id. (“Neither the Supreme

Court of the United States nor our Supreme Court has held that Miller

announced a new rule under the Equal Protection Clause. Instead, Miller

only announced a new rule with respect to the Eighth Amendment. Thus,

contrary to Appellant’s assertion, his Equal Protection Clause argument is



4
  In his motion for reconsideration, Appellant requested this case be held in
abeyance pending this Court’s decision in Lee, which was pending en banc
at the time Appellant filed his motion. This Court certified Lee for en banc
review to address whether the holding in Miller applies only to those who
were younger than 18 at the time the offense was committed. Since the
filing of Appellant’s motion, this Court filed its opinion in Lee, concluding
that “age is the sole factor in determining whether Miller applies to
overcome the PCRA time-bar[.]” Id. at *9. Therefore, Lee, who was over
the age of 18 at the time of the offense, could not “invoke Miller to
overcome the PCRA time-bar[.]” Id. at *1. Thus, Lee reinforces this Court’s
prior decisions in Commonwealth v. Montgomery and Furgess, supra,
that the holding in Miller cannot provide relief for non-juvenile offenders
such as Appellant.



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also an attempt to extend Miller’s holding.”).   Accordingly, the PCRA court

properly dismissed Appellant’s petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 04/03/2019




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