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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 Super. 2011), unpublished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
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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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