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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JEFFREY B. CLARKE
Appellant No. 9 MDA 2015
Appeal from the PCRA Order December 4, 2014
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0000743-1997
CP-22-CR-0000744-1997
BEFORE: ALLEN, J., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY OTT, J.: FILED AUGUST 07, 2015
Jeffrey B. Clarke appeals, pro se, from the order entered December 4,
2014, in the Court of Common Pleas of Dauphin County, dismissing his
fourth petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541-9546. Clarke seeks relief from the judgment of sentence of
25 to 75 years’ incarceration, imposed on November 20, 1998, following a
revocation of his probation.1 On appeal, Clarke presents three claims in
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*
Retired Senior Judge assigned to the Superior Court.
1
The trial court imposed five consecutive terms of five to 15 years’
incarceration on five robbery counts, and four consecutive terms of ten
years’ probation on four counts of conspiracy to commit robbery. On the
remaining count of conspiracy to commit theft, the trial court imposed a
sentence of time served. The trial court applied mandatory minimums
pursuant to 42 Pa.C.S. § 9712 (“Sentences for offenses committed with
firearms.”).
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support of his contention that he is entitled to PCRA relief because his
sentence is illegal pursuant to Alleyne v. United States, 133 S.Ct. 2151
(2013). Based on the following, we affirm.
The PCRA court set forth the relevant factual and procedural history as
follows:
[Clarke] was arrested on October 31, 1996, and again on
November 10, 1996. On August 18, 1997, [Clarke] plead guilty
to five (5) counts [of] Robbery3, four (4) counts [of] Criminal
Conspiracy to Commit Robbery4, and one (1) count Criminal
Conspiracy to Commit Theft5. Thereafter, [Clarke] was
sentenced by the Honorable Lawrence F. Clark, Jr., now retired,
to five (5) years of intermediate punishment with the first eleven
(11) months to be served at the Dauphin County Work Release
Center, followed by ten (10) years of probation.
___________________
3
18 Pa.C.S.A. § 3701 §§ (A)(1).
4
18 Pa.C.S.A. § 903.
5
18 Pa.C.S.A. § 903.
___________________
On June 1, 1998, [Clarke] was arrested for a violation of the
conditions of his intermediate punishment. On November 20,
1998, [Clarke] appeared before Judge Clark for a revocation
hearing, at which time his intermediate punishment and
probation were revoked. [Clarke] was resentenced to an
aggregate incarceration term of twenty-five (25) to seventy-five
(75) years, followed by forty (40) years of probation. [Clarke]
was represented at the revocation hearing by Jason Kutulakis,
Assistant Public Defender.
[Clarke] filed a Motion to Modify Sentence, which was
subsequently denied by Judge Clark. Attorney Kutulakis filed a
timely direct appeal on [Clarke’s] behalf; the judgment [of]
sentence was affirmed by the Superior Court on December 6,
1999. [Clarke] filed a Petition for Allowance of Appeal to the
Supreme Court of Pennsylvania on January 4, 2000, which was
subsequently denied on May 9, 2000.
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First PCRA
On April 30, 2001, [Clarke] filed his first pro se PCRA petition.
Jeffrey Engle, Esquire[,] was appointed by the Court as PCRA
counsel.8 On August 1, 2001, [Clarke’s] PCRA petition was
denied. [Clarke] appealed the denial to the Superior Court; the
denial was affirmed on July 23, 2002. [Clarke] filed a Petition
for Allowance of Appeal to the Supreme Court of Pennsylvania on
August 22, 2002, which was subsequently denied on December
24, 2002.
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8
Procedural history prior to 2003 was provided by
[Clarke] in his Amended Petition under Post-
Conviction Relief Act, filed June 20, 2001.
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Second PCRA
On February 27, 2003, [Clarke] filed his second pro se PCRA
petition. William Shreve, Esquire[,] was appointed by the Court
as PCRA counsel. On August 4, 2003, counsel filed Motion to
Withdraw pursuant to the Post-Conviction Collateral Relief Act on
May 11, 2004, denied [Clarke’s] PCRA request and granted court
appointed counsel’s motion to withdraw. On May 11, 2004,
Judge Clark granted counsel’s motion to withdraw and denied
[Clarke’s] PCRA petition. [Clarke] appealed the denial to the
Superior Court; the denial was affirmed on January 13, 2005.
Third PCRA
On September 20, 2011, [Clarke] filed his third pro se PCRA
petition. Jonathan Crisp, Esquire[,] was appointed by the Court
as PCRA counsel. On November 23, 2011, counsel filed a Motion
to Withdraw with a Turner-Finley “No Merit Letter”. Judge Clark
granted Counsel Motion to Withdraw on November 29, 2011. On
December 28, 2011, [Clarke’s] PCRA petition was denied.
[Clarke] appealed the denial to the Superior Court; the denial
was affirmed on July 30, 2012. [Clarke] filed a Petition for
Allowance of Appeal to the Supreme Court of Pennsylvania on
August 23, 2012, which was subsequently denied on January 7,
2013.
Fourth PCRA Petition
On September 5, 2014, [Clarke] filed his fourth pro se PCRA
petition. In [Clarke’s] PCRA petition, he claimed that he is
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eligible for relief because of a Constitutional violation; the
imposition of a sentence greater than the lawful maximum; and
a proceeding in a tribunal without jurisdiction. [Clarke] alleges
an illegal sentence because additional factors were used to
determine the sentence that was not submitted to the jury14.
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14
[Clarke] was not sentenced following a trial by
jury; he was sentenced based upon guilty plea.
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PCRA Court Opinion, 11/5/2014, at 1-3 (some footnotes omitted). On
November 5, 2014, the PCRA court issued Pa.R.Crim.P. 907 notice of its
intent to dismiss the petition without a hearing. On November 20, 2014,
Clarke responded to the Pa.R.Crim.P. 907 notice. On December 4, 2014, the
PCRA court dismissed Clarke’s petition as untimely filed. This appeal
followed.2
Our standard of review is as follows:
Our standard of review of an order denying PCRA relief is
whether the record supports the PCRA court’s determination and
whether the PCRA court’s decision is free of legal error. The
PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record.
Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citations
omitted).
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2
On January 14, 2015, the PCRA court ordered Clarke to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. He complied
with the court’s directive, and filed a Rule 1925(b) statement on February 2,
2015. On February 23, 2015, the PCRA court filed a Statement in Lieu of
Rule 1925(a) opinion.
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“Crucial to the determination of any PCRA appeal is the timeliness of
the underlying petition. Thus, we must first determine whether the instant
PCRA petition was timely filed.” Commonwealth v. Smith, 35 A.3d 766,
768 (Pa. Super. 2011), appeal denied, 53 A.3d 757 (Pa. 2012). A PCRA
petition must be filed within one year of the date that a judgment of
sentence becomes final. See 42 Pa.C.S. § 9545(b)(1); see also
Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). This
time requirement is mandatory and jurisdictional in nature, and the court
may not ignore it in order to reach the merits of the petition. Hernandez,
supra, at 651.
Here, Clarke’s judgment of sentence became final on August 7, 2000,
90 days after the Pennsylvania Supreme Court denied his petition for
allowance of appeal, and the time for filing a writ of certiorari to the United
State Supreme Court had expired. See Pa.C.S. § 9545(b)(3); see also U.S.
Supreme Court Rule 13 (petition for writ of certiorari is deemed timely when
filed within 90 days after discretionary review is denied by the Pennsylvania
Supreme Court). Therefore, pursuant to Section 9545(b)(1), Clarke had one
year from the date his judgment of sentence became final to file a PCRA
petition. See Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013),
cert. denied, 134 S.Ct. 2695 (2014). The instant petition was not filed until
September 5, 2014, over 14 years later, making it patently untimely.
An untimely PCRA petition may, nevertheless, be considered if one of
the following three exceptions applies:
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(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 ascertained 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). Furthermore, a PCRA petition alleging any of
the exceptions under Section 9545(b)(1) must be filed within 60 days of
when the PCRA claim could have first been brought. 42 Pa.C.S. §
9545(b)(2).
Based on the inter-related nature of Clarke’s issues, relating to
3
Alleyne, we will address them together. First, Clarke alleges that the
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3
In Alleyne, supra, 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.” Id. at 2155.
Applying this mandate, our Courts have held that Alleyne renders numerous
mandatory minimum sentencing statutes unconstitutional. See
Commonwealth v. Hopkins, ___ A.3d ___ [2015 WL 3949099] (Pa. 2015)
(holding 18 Pa.C.S. § 6317 is unconstitutional and non-severable);
Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc)
(finding 42 Pa.C.S. § 9712.1 unconstitutional). See also Commonwealth
v. Vargas, 108 A.3d 858 (Pa. Super. 2014) (en banc) (invalidating 18
Pa.C.S. § 7508); Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super.
2014) (invalidating 42 Pa.C.S. § 9718); Commonwealth v. Valentine, 101
A.3d 801 (Pa. Super. 2014) (invalidating 42 Pa.C.S. §§ 9712 and 9713).
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PCRA court erred in denying his PCRA petition because “it did not give
consideration to the substantial change in law dictated by Alleyne, [supra],
which made [the provisions of] 42 Pa.C.S. §§ 9712, 9714, and 9716
unconstitutional.” Clarke’s Brief at 8. Specifically he states, “[i]t is now
unconstitutional for a judge to use [an] additional element that the jury
assessment [of the] facts did not entail to increase the prescribe range of
penalties to which criminal defendant is exposed.” Id. He further states he
was not charged or convicted of possessing a firearm during the crime and
the Commonwealth waived its right to use the “mandatory minimum firearm
enhancement.” Id. at 9. In his second argument, Clarke claims the
application of the “mandatory minimum firearm enhancement” provision at
his revocation sentencing hearing violates Alleyne. He states the trial court
used a “preponderance of evidence” standard set forth in McMillian v.
Pennsylvania, 477 U.S. 79 (U.S. 1986), which was overruled by Alleyne.
See Id. at 11-12. In his final argument, Clarke claims that the trial court
violated the terms of the negotiated plea agreement by “applying the
mandatory minimum firearm enhancement and imposing consecutive
sentencing” when re-sentencing Clarke at the revocation hearing
proceeding. See Clarke’s Brief at 13.4
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4
It bears mention that in his direct appeal, Clarke argued “the trial court
erred by applying the mandatory [minimum], which the Commonwealth
previously had agreed to waive.” See Commonwealth v. Clarke, 750 A.2d
(Footnote Continued Next Page)
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With respect to these arguments, Clarke does not invoke any statutory
exception to the PCRA time-bar. See 42 Pa.C.S. § 9545(b)(1)(i-iii), supra.
Moreover, even assuming that based on Alleyne, Clarke is attempting to
take advantage of the “new retroactive constitutional right” exception, set
forth in Section 9545(b)(1)(iii), Clarke’s arguments fail for the following
reasons.
First, Clarke filed his fourth PCRA petition on September 5, 2014, more
than a year after Alleyne was decided on June 17, 2013. In
Commonwealth v. Brandon, 51 A.3d 231 (Pa. Super. 2012), this Court
held “the sixty-day period begins to run upon the date of the underlying
judicial decision.” Id. at 235, citing Commonwealth v. Baldwin, 789 A.2d
728, 731 (Pa. Super. 2001), appeal denied, 863 A.2d 1141 (Pa. 2004).
Therefore, Clarke failed to file his petition within 60 days of the date the
claim could have been presented under Section 9545(b)(2). Consequently,
the PCRA petition is untimely on this basis.
Second, even if Clarke’s petition had been filed within 60 days of
Alleyne, “neither our Supreme Court, nor the United States Supreme Court
has held that Alleyne is to be applied retroactively to cases in which the
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(Footnote Continued)
365 [185 MDA 1999] (Pa. Super. 1999) (unpublished memorandum, at 7),
appeal denied, 758 A.2d 660 (Pa. 2000). This Court rejected the argument
stating, the trial court “clearly informed [Clarke] that the Commonwealth
only agreed to waive the [mandatory minimum] so that he would be eligible
to participate in the [intermediate punishment] program.” Id. at 8 (citation
omitted).
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judgment of sentence had become final.” Commonwealth v. Miller, 102
A.3d 988, 995 (Pa. Super. 2014). Therefore, Alleyne does not provide
Clarke with an exception under Section 9545(b)(1)(iii) to the PCRA’s timing
requirements. Accordingly, none of Clarke’s arguments overcome the
PCRA’s time-bar.
Because Clarke is unable to demonstrate the applicability of any
statutory exception to the timing requirements of the PCRA, we affirm the
court’s dismissal of Clarke’s fourth PCRA petition.5
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2015
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5
Although our reasoning differs from the PCRA court, we may affirm the
PCRA court on any basis. See Commonwealth v. Reid, 107 A.3d 137, 144
(Pa. Super. 2014).
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