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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
KEVIN LARKIN, :
:
Appellant : No. 1471 EDA 2016
Appeal from the PCRA Order entered April 8, 2016
in the Court of Common Pleas of Chester County,
Criminal Division, No(s): CP-15-CR-0002828-1999,
CP-15-CR-0002829-1999, CP-15-CR-0002830-1999,
CP-15-CR-0003263-1999, CP-15-CR-0003264-1999
BEFORE: PANELLA, RANSOM and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 14, 2017
Kevin Larkin (“Larkin”) appeals, pro se, from the Order dismissing his
Petition filed pursuant to the Post Conviction Relief Act (“PCRA”). See 42
Pa.C.S.A. §§ 9541-9546. We affirm.
On June 11, 1999, the West Whiteland Police Department received a
report of a rape of an 88-year-old woman. Larkin was identified as a
suspect following an investigation. Several days later, Larkin attended an
Alcoholics Anonymous meeting, and during a private conversation with his
sponsor, Larkin admitted to entering an elderly female’s home and sexually
assaulting her. Larkin’s sponsor reported the conversation to the police, and
the police obtained authorization to record a subsequent conversation
between Larkin and his sponsor. During an interview, Larkin admitted to
police that he was the perpetrator of several similar incidents in the area.
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On January 11, 2000, Larkin entered negotiated pleas of nolo
contendere to rape, and guilty but mentally ill to five counts of burglary, one
count of attempted aggravated indecent assault, and three counts of
indecent exposure.1 See 18 Pa.C.S.A. §§ 3121, 3502, 901, 3125, 3127.
Pursuant to Larkin’s plea agreement, the trial court sentenced Larkin to an
aggregate prison term of 15 to 30 years, followed by 20 years of probation.
Larkin did not file a direct appeal.
Larkin filed the instant PCRA Petition on September 4, 2015. The
PCRA court appointed Larkin counsel, who subsequently filed a Petition to
Withdraw and a Turner/Finley2 “no-merit” letter. The PCRA court granted
the Petition to Withdraw. The PCRA court entered a Pa.R.Crim.P. 907 Notice
of Intent to Dismiss, to which Larkin, pro se, filed a Response. Following an
evidentiary hearing, the PCRA court dismissed Larkin’s Petition as untimely
filed. Larkin filed a timely Notice of Appeal and a court-ordered Pa.R.A.P.
1925(b) Concise Statement.
On appeal, Larkin raises the following question for our review: “Did
[the PCRA court] err[] in denying [Larkin’s PCRA Petition]?” Brief for
Appellant at 4.
1
Larkin was charged for separate incidents on five dockets, which were
consolidated for sentencing purposes.
2
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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We review an order dismissing a petition under the PCRA
in the light most favorable to the prevailing party at the PCRA
level. This review is limited to the findings of the PCRA court
and the evidence of the record. We will not disturb a PCRA
court’s ruling if it is supported by evidence of record and is free
of legal error.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
Initially, under the PCRA, any petition “shall be filed within one year of
the date the judgment becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1). A
judgment of sentence 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.” Id. § 9545(b)(3). The PCRA’s timeliness requirements are
jurisdictional in nature and a court may not address the merits of the issues
raised if the PCRA petition was not timely filed. Commonwealth v.
Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
Here, Larkin’s judgment of sentence became final in February 2000,
when the time for filing a direct appeal expired. Thus, Larkin had until
February 2001 to file a timely petition. Because Larkin filed the instant
Petition in September 2015, his Petition is facially untimely.
However, Pennsylvania courts may consider an untimely petition if the
appellant can explicitly plead and prove one of three exceptions set forth
under 42 Pa.C.S.A. § 9545(b)(1)(i-iii). Any petition invoking one of these
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exceptions “shall be filed within 60 days of the date the claim could have
been presented.” Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094.
Larkin argues that the PCRA court erred in dismissing his Petition, and
offers three sub-issues for our consideration. In his first sub-issue, Larkin
points to the United States Court of Appeals for the Second Circuit’s decision
in Cox v. Miller, 296 F.3d 89 (2d Cir. 2002)3 as a newly-discovered fact,
and asserts that the recorded conversation with his Alcoholics Anonymous
sponsor should have been suppressed as a confidential communication.
Brief for Appellant at 8-10. Larkin claims that his admissions are protected
by the clergy-communicant privilege because he spoke to his sponsor for the
purpose of “spiritual guidance.” Id. at 8-9.
Initially, the Cox decision does not support Larkin’s position, as the
Second Circuit held that the cleric-congregant privilege does not protect
statements made to fellow members of Alcoholics Anonymous. See Cox,
296 F.3d at 112-13. Additionally, judicial decisions cannot “be considered
newly-discovered facts which could invoke the protections afforded by
section 9545(b)(1)(ii).” Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa.
Super. 2013). Moreover, Larkin failed to file his Petition within sixty days of
July 17, 2002, the date that Cox was decided. See 42 Pa.C.S.A.
3
In Cox, the Second Circuit held that New York’s cleric-congregant privilege
does not protect statements made to fellow members of Alcoholics
Anonymous. Cox, 296 F.3d at 112-13.
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§ 9545(b)(2). Therefore, Larkin has failed to plead and prove the newly-
discovered facts exception to the PCRA’s timeliness requirement.
In his second sub-issue, Larkin attempts to invoke the newly-
recognized constitutional right exception based on the United States
Supreme Court’s decision in Alleyne v. United States, 133 S. Ct. 2151
(2013).4 Brief for Appellant at 10-11. Larkin argues that his sentence is
illegal based upon Alleyne because he was subject to a mandatory
minimum sentence.5 Id. at 11.
Here, Larkin filed the instant PCRA Petition in September 2015, well
over sixty days after June 17, 2013, the date that Alleyne was decided.
See 42 Pa.C.S.A. § 9545(b)(2); see also Commonwealth v. Boyd, 923
A.2d 513, 517 (Pa. Super. 2007) (stating that “[w]ith regard to an after-
recognized constitutional right, this Court has held that the sixty-day period
begins to run upon the date of the underlying judicial decision.”).
Even if Larkin had properly invoked the exception at section
9545(b)(1)(iii), the rule in Alleyne does not apply retroactively where the
4
In Alleyne, the Supreme Court held that any fact that increases the
sentence for a given crime must be submitted to the jury and found beyond
a reasonable doubt. Alleyne, 133 S. Ct. at 2155. The Supreme Court
reasoned that a Sixth Amendment violation occurs where these sentence-
determinative facts are not submitted to a jury. Id. at 2156.
5
Larkin does not allege what mandatory sentence he purportedly received.
In its Opinion, the PCRA court states that Larkin was not subject to a
mandatory minimum sentence because he “packaged a number of cases into
a global sentence” when he entered a negotiated plea, and “[t]he jail
component [of Larkin’s sentence] was split between two counts that easily
facilitated the agreed upon term.” PCRA Court Opinion, 4/8/16, at 4.
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judgment of sentence is final. See Commonwealth v. Miller, 102 A.3d
988, 995 (Pa. Super. 2014) (stating that neither the United States Supreme
Court nor the Pennsylvania Supreme Court has held that Alleyne applies
retroactively where the judgment of sentence has become final); see also
id. (stating that “though not technically waivable, a legality of sentence
claim may nevertheless be lost should it be raised in an untimely PCRA
petition for which no time-bar exception applies” (citation, brackets, and
ellipses omitted)). Accordingly, Larkin has failed to plead and prove the
newly-recognized constitutional right exception to the PCRA’s timeliness
requirement.
Larkin raises a third sub-issue, which does not implicate an exception
to the PCRA’s timeliness requirement, and which is waived as a result of
Larkin’s failure to preserve the claim in his court-ordered Rule 1925(b)
Concise Statement. See Pa.R.A.P. 1925(b)(4)(vii) (stating that “[i]ssues not
included in the Statement … are waived.”); see also Commonwealth v.
Lord, 719 A.2d 306, 309 (Pa. 1998) (stating that “[a]ny issues not raised in
a 1925(b) statement will be deemed waived.”).
Because Larkin failed to successfully invoke any of the exceptions
necessary to circumvent the PCRA’s timeliness requirement, we cannot
address the merits of his claims.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/2017
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