J-S60039-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                       v.

HOMER RICHARD CLIFFORD, SR.

                            Appellant                No. 910 EDA 2015


                  Appeal from the PCRA Order March 10, 2015
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0003562-2011


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.:                         FILED NOVEMBER 30, 2015

        Homer Richard Clifford, Sr., appeals, pro se, from the order entered

March 10, 2015, in the Chester County Court of Common Pleas, dismissing

his second petition for collateral relief filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. Clifford seeks relief from the

judgment of sentence of an aggregate 10 to 20 years’ imprisonment,

imposed on October 11, 2012, following his guilty plea to charges of

involuntary deviate sexual intercourse (two counts), endangering the welfare

of a child, and corruption of minors for the sexual abuse of his

granddaughter.1        On appeal, Clifford asserts the PCRA court erred in

dismissing his petition as untimely filed because the ineffectiveness of plea
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1
    18 Pa.C.S. §§ 3123(a)(6), 4304, and 6301, respectively.
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counsel deprived him of his right to a direct appeal. For the reasons below,

we affirm.

       On July 7, 2011, the victim, then 21 years old, reported to the

Coatesville Police Department that she had been sexually assaulted by

Clifford, her grandfather, on at least two occasions, when she was under the

age of 13 years old.       On April 30, 2012, Clifford, represented by retained

counsel, entered a guilty plea to the above-stated charges. The trial court

deferred sentencing and ordered Clifford 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

       On October 11, 2012, the trial court held a combined Megan’s

Law/sentencing hearing.        Clifford did not contest the findings of the SOAB

evaluator as outlined in his assessment, and accordingly, the trial court

determined Clifford 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 Clifford to two consecutive mandatory minimum terms of five to 10


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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).




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years’ imprisonment3 for the 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.

       Clifford did not file a post-sentence motion within 10 days of

sentencing. Rather, on November 13, 2012, Clifford filed a petition for leave

to file post sentence motions nunc pro tunc.4 The court initially granted the

petition, and Clifford filed a post-sentence motion challenging the validity of


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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).
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, Clifford 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 Clifford had filed a
notice of appeal on November 13, 2012, it would have been timely filed.

      We note the trial court expressly granted Clifford’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 Clifford may have been entitled is now lost since the instant appeal is
from an untimely second PCRA petition. See infra.




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his plea and the discretionary aspects of his sentence.        Thereafter, on

November 26, 2012, retained defense counsel filed a petition to withdraw so

that Clifford 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 Clifford.

       However, on January 11, 2013, the trial court entered an order stating

that Clifford’s putative post-sentence motion was “in fact [Clifford’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 April 24, 2013, the

PCRA court sent Clifford notice of its intent to dismiss his petition without

first conducting an evidentiary hearing pursuant to Pa.R.Crim.P. 907.

Clifford did not file a response, and, accordingly, on June 21, 2013, the court

entered an order dismissing the PCRA petition.     Thereafter, Clifford filed a

timely, pro se appeal to this Court; however, the appeal was dismissed on

November 26, 2013, when Clifford failed to file a brief.          See Order,

11/26/2013.



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5
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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       Nearly one year later, on October 10, 2014, Clifford 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, Clifford 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.           Clifford

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).6 On February 4,

2015, the PCRA court, once again, notified Clifford of its intent to dismiss his

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6
  In Alleyne, the United States Supreme Court held “[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.” Alleyne, 133 S.Ct. at
2155. This Court has held that the mandatory minimum sentencing statute
under which Clifford was sentenced, 42 Pa.C.S. § 9718, is constitutionally
invalid pursuant to Alleyne, and that defendants who were sentenced under
Section 9718 and whose cases were pending on direct appeal at the time
Alleyne was decided, are entitled to relief. See Commonwealth v. Wolfe,
106 A.3d 800, 806 (Pa. Super. 2014), appeal granted, 121 A.3d 433 (Pa.
2015).




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petition pursuant to Rule 907. Clifford filed an untimely pro se response,7 in

which he asserted, inter alia, his claims fell within the time for filing PCRA

exceptions. On March 10, 2015, the PCRA court dismissed Clifford’s petition

as untimely filed, and this appeal follows.8

       On appeal, Clifford contends the PCRA court erred in dismissing his

petition as untimely filed. Specifically, he argues:

       [I]t was clear that counsel failed to file his Post Sentence Motion
       in a timely manner. This result[ed] in the Trial Court treating
       the late motion as a PCRA.

Clifford’s Brief at 8. Accordingly, Clifford asserts trial counsel’s “failure to act

in a timely manner, prejudiced [him] in such a way to abridge his

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7
   The PCRA court explained the untimeliness of Clifford’s response as
follows:

       The court issued a Notice of Intent to Dismiss the instant PCRA
       petition on February 4, 2015. As per Pa.R.A.P. 907(1), [Clifford]
       was informed that he had twenty (20) days from the issuance of
       that Notice to respond, or else his petition would be dismissed.
       [Clifford’s] response to our Notice was postmarked on February
       27, 2015, which is the effective date of [Clifford’s] filing as per
       the “prison mailbox rule.” See Commonwealth v. Little, 716
       A.2d 1287 (Pa. Super. 1998). [Clifford’s] response was filed 23
       days following the Court’s Notice, therefore, his response is
       untimely and the petition is dismissed.

Order, 3/10/2015, at 2 n.1.

8
   On April 1, 2015, the PCRA court ordered Clifford to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Clifford complied with the court’s directive, and filed a concise statement on
April 17, 2015.




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constitutional right to Direct Appellate Review.”   Id. at 9.   Therefore, he

requests permission to file a direct appeal nunc pro tunc.

      When reviewing an order dismissing a PCRA petition, we must

determine whether the ruling of the PCRA court is supported by evidence of

record and is free of legal error. Commonwealth v. Burkett, 5 A.3d 1260,

1267 (Pa. Super. 2010). “Great deference is granted to the findings of the

PCRA court, and these findings will not be disturbed unless they have no

support in the certified record.” Commonwealth v. Carter, 21 A.3d 680,

682 (Pa. Super. 2011) (citation omitted).

      In the present case, the PCRA court determined Clifford’s petition, his

second, was untimely filed.    See Order 2/4/2015, at 2 n.1.       The PCRA

mandates that any petition for relief, “including a second or subsequent

petition, shall be filed within one year of the date the judgment becomes

final[.]” 42 Pa.C.S. §9545(b)(1).

      The PCRA’s timeliness requirements are jurisdictional; therefore,
      a court may not address the merits of the issues raised if the
      petition was not timely filed. The timeliness requirements apply
      to all PCRA petitions, regardless of the nature of the
      individual claims raised therein.

Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012) (internal citations

omitted and emphasis supplied).

      Clifford’s judgment of sentence became final on November 12, 2012,

thirty days after his sentence was imposed, and he failed to file a direct




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appeal.     See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a). Accordingly,

Clifford had until November 12, 2013, to file a timely PCRA petition. 9 The

present petition, filed nearly one year later on October 10, 2014, is facially

untimely.10

       However, pursuant to 42 Pa.C.S. § 9545, an otherwise untimely

petition is not time-barred if a petitioner pleads and proves the applicability

of one of three time-for-filing exceptions:

       (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
       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). Further, any petition invoking one of these

exceptions must be filed “within 60 days of the date the claim could have

been presented.” Id. at § 9545(b)(2).

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9
 As noted above, the trial court considered Clifford’s belated post-sentence
motion, filed on November 13, 2012, to be a timely first PCRA petition.
10
   We note the court dismissed Clifford’s first PCRA petition on June 21,
2013. Had Clifford not filed an appeal from that order, he could have filed a
second timely PCRA petition before the one-year filing deadline expired on
November 12, 2013.



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        Clifford does not argue that one of the timing exceptions apply to the

facts    of     his    case.   Rather,    he   simply    asserts     that     plea     counsel’s

ineffectiveness in filing an untimely post sentence motion resulted in the loss

of his        direct   appeal rights,    and   “forced him         into    premature      PCRA

proceedings.”11 Clifford’s Brief at 9a. The Supreme Court has “repeatedly

stated it is the appellant’s burden to allege and prove that one of the

timeliness exceptions applies.”            Commonwealth v. Edmiston, 65 A.3d

339, 346 (Pa. 2013), cert. denied, 134 S. Ct. 639 (U.S. 2013). Therefore,

Clifford’s failure to raise the applicability of a timing exception in his brief

precludes our review.

        We note, however, that even if we were to consider the arguments

raised in Clifford’s untimely, pro se response to the PCRA court’s Rule 907

notice, we would still conclude he is entitled to no relief. With respect to the

“governmental           interference”    exception,     Clifford    claims     trial    counsel

interfered with his right to file a timely direct appeal. 12 See Letter Response

to Rule 907 Notice, 2/27/2015, at unnumbered 12-13.                       However, it is well-
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11
   It is well-settled “a claim of ineffective assistance of counsel does not save
an otherwise untimely petition for review on the merits.” Commonwealth
v. Fahy, 737 A.2d 214, 223 (Pa. 1999).
12
   We note that the trial court’s actions in misconstruing Clifford’s post-
sentence motion nunc pro tunc as a first PCRA petition could be considered
governmental interference under the timeliness exceptions. See supra, n.
4. However, Clifford, himself does not raise such a claim, and, even if he
did, he did not present the claim within 60-days of the court’s error. See 42
Pa.C.S. § 9545(b).



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established that “the alleged ineffectiveness of all prior counsel … does not

fall within the governmental interference exception.”     Commonwealth v.

Crews, 863 A.2d 498, 503 (Pa. 2004).

      Further, with regard to the “newly discovered facts” exception, Clifford

asserts that he was unaware plea counsel had filed an untimely post-

sentence motion.   See Letter Response to Rule 907 Notice, 2/27/2015, at

unnumbered 13-14.     However, he fails to aver when he became aware of

counsel’s actions, or that he filed the present petition within the requisite

60-day period thereafter.     See 42 Pa.C.S. § 9545(b)(2).        Clifford also

attempts to invoke the “newly recognized constitutional rights” exception,

but argues only that he believes his constitutional rights were violated from

the “very beginning of [his] initial contact with law enforcement.”     Letter

Response to Rule 907 Notice, 2/27/2015, at unnumbered 16.          In order to

qualify for the Section 9545(b)(iii) timing exception, a petitioner must prove:

(1) “the right asserted is a constitutional right that was recognized by the

Supreme Court of the United States or [the Pennsylvania Supreme Court]

after the time provided in [Section 9545;]” and (2) the right ‘has been

held’ by ‘that court’ to apply retroactively.”   Commonwealth v. Abdul-

Salaam, 812 A.2d 497, 501 (Pa. 2002) (emphasis supplied)              Because




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Clifford failed to identify a specific, newly recognized constitutional right, his

argument necessarily fails.13

       Therefore, because we agree with the conclusion of the PCRA court

that the present petition was untimely filed, and Clifford has failed to plead

or prove the applicability of one of the timeliness exceptions, we affirm the

order dismissing Clifford’s second PCRA petition.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/2015




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13
  We note Clifford did not reiterate his Alleyne claim in either his Rule 907
response, or in his appellate brief. Nevetheless, this Court has held Alleyne
does not satisfy the “newly recognized constitutional right” exception to the
PCRA’s one-year bar. See Commonwealth v. Miller, 102 A.3d 988 (Pa.
Super. 2014).



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