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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
DAVON L. CLARK
Appellant No. 770 WDA 2016
Appeal from the PCRA Order April 28, 2016
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0003571-2002
BEFORE: BENDER, P.J.E., BOWES, J., AND SOLANO, J.
MEMORANDUM BY BOWES, J.: FILED JANUARY 31, 2017
Davon L. Clark appeals from the April 28, 2016 order dismissing his
fourth PCRA petition as untimely. We affirm.
On April 7, 2004, a jury convicted Appellant of one count each of
burglary, attempted rape, and aggravated assault, and two counts of
aggravated indecent assault. In the early morning hours of August 16,
2002, Appellant entered the bedroom of K.O., and placed his fingers inside
her vagina. After K.O. awoke and screamed, Appellant put a knife against
her throat, and told her that he was going to have sex with her. Appellant
commanded the victim to remove her clothing, but she pushed Appellant
onto the floor. As he fell, Appellant inflicted injuries on the victim’s neck and
shoulder. K.O. escaped the room and started to scream for her roommates.
Appellant fled, but his fingerprints were discovered at the point of entry into
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K.O.’s residence. Appellant was sentenced to fifteen years and nine months
to thirty-one years and six months incarceration. On February 10, 2006, we
affirmed, Commonwealth v. Clark, 897 A.2d 515 (Pa.Super. 2006), and
Appellant did not seek further review.
Appellant filed a timely PCRA petition on March 7, 2006, counsel was
appointed, and counsel filed an amended petition. After an evidentiary
hearing, PCRA relief was denied. On appeal, we affirmed the denial of PCRA
relief. Commonwealth v. Clark, 964 A.2d 431 (Pa. Super. 2008), appeal
denied, 970 A.2d 428 (Pa. 2009). On June 24, 2009, Appellant filed a
second PCRA petition pro se. The court ordered PCRA counsel to continue
representation, and PCRA counsel filed a no-merit letter and petition to
withdraw. On January 7, 2010, PCRA relief was denied for a second time,
and counsel was permitted to withdraw.
In 2011, Appellant filed three additional pro se documents consisting
of a motion for waiver of collection of costs, fines and restitution, a motion
to modify sentence, and a motion asking to file a motion to modify sentence
nunc pro tunc. Those motions were denied that year. On December 4,
2014, Appellant filed his third request for post-conviction relief and also
asked that counsel be appointed. Relief was denied on January 26, 2015.
On March 7, 2016, Appellant filed his fourth PCRA petition, claiming
entitlement to relief under Miller v. Alabama, 132 S.Ct. 2455 (2012), and
Montgomery v. Louisiana, 136 S.Ct. 718 (2016). The United States
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Supreme Court held in Miller that it was unconstitutional under the Eighth
Amendment’s prohibition against cruel and usual punishment to sentence a
juvenile homicide offender to a mandatory term of life imprisonment without
parole, and Montgomery accorded full retroactive effect to the Miller
decision. Appellant’s March 7, 2016 PCRA petition was filed within sixty days
of when Montgomery was decided. The PCRA court concluded that Miller,
and, concomitantly, Montgomery were inapplicable in this action and
denied relief. This appeal followed.
On appeal, Appellant asserts that his present PCRA petition is timely
filed as Montgomery created a new constitutional right that is applicable to
him. Specifically, he maintains that Montgomery rendered retroactive the
United States Supreme Court’s decision in Alleyne v. United States, 133
S.Ct. 2151 (2013). In Alleyne, the Court held that, under the Sixth
Amendment’s right to a jury trial, facts “that increase mandatory minimum
sentences must be submitted to the jury” and found beyond a reasonable
doubt.” Id. at 2163.
Initially, we note that this Court reviews the “denial of PCRA relief to
determine whether the findings of the PCRA court are supported by the
record and free of legal error.” Commonwealth v. Roane, 142 A.3d 79, 86
(Pa. Super. 2016) (quoting Commonwealth v. Treiber, 121 A.3d 435, 444
(Pa. 2015)).
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All PCRA petitions must be filed within one year of the date a
defendant’s judgment becomes final unless an exception to the one-year
time restriction applies. 42 Pa.C.S. § 9545(b)(1). If a PCRA petition is
untimely, “neither this Court nor the trial court has jurisdiction over the
petition.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014)
(citation omitted); see also Commonwealth v. Chester, 895 A.2d 520,
522 (Pa. 2006). “A judgment becomes 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.” 42 Pa.C.S. § 9545(b)(3).
In this case, we affirmed Appellant’s judgment of sentence on
February 10, 2006, and it became final thirty days thereafter, or on March
12, 2006, since he did not seek review in our Supreme Court. Appellant had
until March 12, 2007, to file a timely PCRA petition, and the present March
7, 2016, is nearly nine years out of time. There are three exceptions to the
one-year time bar of § 9545:
(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
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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).
Appellant invokes the newly-recognized constitutional right exception,
claiming that Montgomery rendered the new constitutional right announced
in Alleyne retroactive. Appellant’s claim is misguided. As the PCRA court
noted, Montgomery held that Miller was retroactive. Miller ruled that it
was unconstitutional to sentence a juvenile homicide offender to an
automatic term of life imprisonment without parole. Herein, Appellant was
not convicted of homicide, and a sentence of life imprisonment without
parole was not imposed upon him. Additionally, the sentencing transcript
indicates that Appellant was approximately twenty years old when he
committed this offense. N.T. Sentencing, 9/29/04, at 191. Since Appellant
was not a juvenile on August 16, 2002, Miller is inapposite for that
additional reason. See Commonwealth v. Lawson, 90 A.3d 1 (Pa.Super.
2014) (adult homicide offenders do not fall under Miller’s holding).
Montgomery, which discussed only the Miller case, did not retroactively
apply a constitutional right enjoyed by Appellant.
Additionally, Alleyne, which Appellant invokes on appeal, is not
retroactive in the PCRA setting. Commonwealth v. Washington, 142 A.3d
810, 811 (Pa. 2016) (holding that Alleyne does not apply retroactively “to
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attacks upon mandatory minimum sentences advanced on collateral
review.”).
As the PCRA court did not abuse its discretion or commit an error of
law, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/31/2017
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