J-S90042-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HOMER RICHARD CLIFFORD SR.,
Appellant No. 1346 EDA 2016
Appeal from the PCRA Order April 11, 2016
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0003562-2011
BEFORE: OTT, J., SOLANO, J. AND JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED NOVEMBER 23, 2016
Homer Richard Clifford Sr. (“Appellant”) appeals pro se from the order
entered in the Chester County Court of Common Pleas, which dismissed as
untimely his third petition filed for relief pursuant to the Post Conviction
Relief Act (“PCRA”).1 We affirm.
This Court set forth the relevant facts and procedural history of this
appeal in a non-precedential memorandum affirming the order denying
Appellant’s second PCRA petition as follows:
On July 7, 2011, the victim, then 21 years old, reported to
the Coatesville Police Department that she had been
sexually assaulted by [Appellant], her grandfather, on at
least two occasions, when she was under the age of 13
____________________________________________
1
42 Pa.C.S. §§ 9541-9546.
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years old.[2] On April 30, 2012, [Appellant], represented by
retained counsel, entered a guilty plea to the above-stated
charges. The trial court deferred sentencing and ordered
[Appellant] 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
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).
On October 11, 2012, the trial court held a combined
Megan’s Law/sentencing hearing. [Appellant] did not
contest the findings of the SOAB evaluator as outlined in
his assessment, and accordingly, the trial court determined
[Appellant] 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 [Appellant] to two consecutive
mandatory minimum terms of five to 10 years’
imprisonment3 for [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.
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).
[Appellant] did not file a post-sentence motion within 10
days of sentencing. Rather, on November 13, 2012,
[Appellant] filed a petition for leave to file post sentence
motions nunc pro tunc.4 The court initially granted the
petition, and [Appellant] filed a post-sentence motion
challenging the validity of his plea and the discretionary
aspects of his sentence. Thereafter, on November 26,
____________________________________________
2
Appellant was born on October 23, 1946.
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2012, retained defense counsel filed a petition to withdraw
so that [Appellant] 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
[Appellant].
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, [Appellant] 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 [Appellant] had filed a
notice of appeal on November 13, 2012, it would
have been timely filed.
We note the trial court expressly granted
[Appellant]’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 [Appellant] may
have been entitled is now lost since the instant
appeal is from an untimely second PCRA petition.
See infra.
However, on January 11, 2013, the trial court entered an
order stating that [Appellant]’s putative post-sentence
motion was “in fact [Appellant’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
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April 24, 2013, the PCRA court sent [Appellant] notice of
its intent to dismiss his petition without first conducting an
evidentiary hearing pursuant to Pa.R.Crim.P. 907.
[Appellant] did not file a response, and, accordingly, on
June 21, 2013, the court entered an order dismissing the
PCRA petition. Thereafter, [Appellant] filed a timely, pro se
appeal to this Court; however, the appeal was dismissed
on November 26, 2013, when [Appellant] failed to file a
brief. See Order, 11/26/2013.
5
Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988); Commonwealth v. Finley, 550 A.2d 213
(Pa.Super.1988) (en banc).
Nearly one year later, on October 10, 2014, [Appellant]
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,
[Appellant] 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. [Appellant] 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). On February 4, 2015, the PCRA court, once
again, notified [Appellant] of its intent to dismiss his
petition pursuant to Rule 907…. On March 10, 2015, the
PCRA court dismissed [Appellant]’s petition as untimely
filed[.]
Commonwealth v. Clifford, 910 EDA 2015, unpublished memorandum at
2-6 (Pa.Super. filed November 30, 2015) (footnote omitted). On November
30, 2015, this Court affirmed the order dismissing Appellant’s PCRA petition.
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On February 8, 2016, Appellant filed a document entitled “Petition for
Writ of Habeas Corpus Nunc Pro Tunc/(Amended).” On March 9, 2016, the
PCRA court properly treated Appellant’s filing as a PCRA petition 3 and issued
notice of its intent to dismiss the petition without a hearing pursuant to
Pa.R.Crim.P. 907. Appellant filed a response to the notice on March 28,
2016, and on April 11, 2016, the PCRA court dismissed Appellant’s petition.
On April 27, 2016, Appellant timely filed a notice of appeal.
Appellant raises the following issues for our review:
HAS THE PCRA COURT CONTINUED TO ERROR IN
DISMISSING MY APPELLANT CLAIMS OF INEFFECTIVENESS
OF ASSISTANCE OF COUNSEL OF ATTORNEY DANIEL
ARMSTRONG, FROM THE INCEPTION OF HIS SERVICES
UNTIL HIS ABANDONMENT OF ME, THE SAID APPELLANT
AT THE END OF THE SENTENCING HEARING?
HAS THE PCRA COURT CONTINUED TO ERROR IN
DENYING THAT THE ACTIONS OR OMISSIONS OF
ASSISTANCE OF COUNSEL AND THE COURT AND ITS
OFFICERS, HAS BEEN JUDICIALLY PREJUDICIAL TO ME
THE SAID APPELLANT, IN FAILING TO PROTECT MY
CONSTITUTIONAL RIGHT OF DIRECT APPEAL.
HAS THE PCRA COURT CONTINUED TO ERROR BY
CHARGING SAID APPELLANT WITH UNTIMELINESS, WHILE
AT THE SAME TIME, THE TRIAL/PCRA COURT’S PUBLIC
DEFENDER WAS THE SAID APPELLANT’S COUNSEL
DURING THE 60 DAY WINDOW AND FAILED TO PROTECT
MY CONSTITUTIONAL RIGHT OF DIRECT APPEAL?
____________________________________________
3
“[A]ny motion filed after the finality of a sentence that raises an issue that
can be addressed under the PCRA is to be treated as a PCRA petition.”
Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa.Super.2013).
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HAS THE PCRA COURT CREATED A DOUBLE STANDARD BY
ACKNOWLEDGING THAT THERE WERE FACTUAL
DESCRIPTIONS OF EVENTS AND CIRCUMSTANCES IN MY
CASE, INVOLVING INTERACTION WITH THE SAID
ASSISTANCE OF COUNSEL AND YET, DISMISS AS NOT
BEING OF MATERIAL MERIT?
HAS THE PCRA COURT ERRORED IN FAILING TO
ACKNOWLEDGE THAT I, SAID APPELLANT WAS DEPRIVED
THE STATUTORY RIGHT TO HAVE COUNSEL AND
WITNESSES AND TESTIFY AND BE HEARD DURING THE
S.O.A.B. PORTION OF THE SENTENCING HEARING OF
WHICH THERE WAS NONE IN VIOLATION OF (42 PA.C.S.
9791.1), NUMERAL POINTS 16 THROUGH 23?
HAS THE PCRA COURT CONTINUE TO CRY UNTIMELINESS
TO MASK THE ERROR OF THE TRIAL/PCRA COURT TO NOT
PROTECT SAID APPELLANT’S CONSTITUTIONAL DIRECT
APPEAL RIGHT AND ALSO TO PREVENT ALL TRUTH FROM
BEING BROUGHT FORTH THAT WOULD CHALLENGE THE
LEGALITY OF MY CONVICTION AND SENTENCE?
ALSO THAT THE TRIAL COURT AND THE PCRA COURTS
CONTINUE TO DENY ANY MISCARRIAGE OF JUSTICE,
PREJUDICE, AND DENIAL OF ANY CONSTITUTIONAL
SAFEGUARD VIOLATIONS OF THE 5TH 6TH AND 14TH
AMENDMENTS OF THE UNITED STATES CONSTITUTION
AND ARTICLE 1, SECTION 9 OF THE PENNSYLVANIA
CONSTITUTION? 42 PA.C.S. 9543(A)(2)(i).
FURTHERMORE, UNDER THE NEW SUBSTANTIVE RULE OF
LAW CONCERNING SENTENCES THAT THE STATE
IMPOSES, THAT THE CONSTITUTION FORBIDS
SUBSTANTIVE CONSTITUTIONAL RULES INCLUDE, “RULES
FORBIDDING CRIMINAL PUNISHMENT OF CERTAIN
PRIMARY CONDUCT” AND RULES PROHIBITING CERTAIN
CATEGORY OF PUNISHMENT FOR A CLASS OF
DEFENDANTS BECAUSE OF THEIR STATUES OF OFFENSE”.
THEREFORE, I WISH TO PRESERVE FOR APPEAL, OR SUA
SPANTE BY THIS HONORABLE COURT, THE
CONSTITUTIONAL CHALLENGE TO THE MANDATORY
MINIMUM SENTENCE IMPOSED ON ME THE APPELLANTS
ILLEGAL AND UNCONSTITUTIONAL. I WISH TO
CHALLENGE UNDER COLLATERAL REVIEW THE LEGALITY
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OF MY TIME BARRED SENTENCE AS ILLEGAL UNDER:
MONTGOMERY VS. LOUISIANA (2016); MILLER VS.
UNITED STATES (2013); COMMONWEALTH VS.
NEWMAN (2014); AND COMMONWEALTH VS. WOLFE
(2014). AN UNCONSTITUTIONAL ILLEGAL SENTENCE IS A
NON-WAIVER ABLE ISSUE.
Appellant’s Brief at 1-2 (verbatim).
Before we address the merits of Appellant’s claims, we must determine
whether his PCRA petition was timely. The timeliness of a PCRA petition
implicates the jurisdiction of both this Court and the PCRA court.
Commonwealth v. Williams, 35 A.3d 44, 52 (Pa.Super.2011), appeal
denied, 50 A.3d 121 (Pa.2012). “Pennsylvania law makes clear that no
court has jurisdiction to hear an untimely PCRA petition.” Id. To “accord
finality to the collateral review process[,]” the PCRA “confers no authority
upon [appellate courts] to fashion ad hoc equitable exceptions to the PCRA
timebar[.]” Commonwealth v. Watts, 23 A.3d 980, 983 (Pa.2011). With
respect to jurisdiction under the PCRA, this Court has further explained:
The most recent amendments to the PCRA...provide a
PCRA petition, including a second or subsequent petition,
shall be filed within one year of the date the underlying
judgment becomes final. A judgment is deemed 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.
Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010)
(citations and quotations omitted), appeal denied, 20 A.3d 1210 (Pa.2011);
see also 42 Pa.C.S. § 9545(b). This Court may review a PCRA petition filed
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more than one year after the judgment of sentence becomes final only if the
claim falls within one of the following three statutory exceptions, which the
petitioner must plead and prove:
(i) the failure to raise the claim 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). These “exceptions to the time bar must be pled in
the PCRA petition, and may not be raised for the first time on appeal.”
Commonwealth v. Burton, 936 A.2d 521, 525 (Pa.Super.2007). Further,
if a petition pleads one of these exceptions, the petition will not be
considered unless it is “filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, as this Court noted in our non-precedential memorandum
affirming the dismissal of Appellant’s second PCRA petition, Appellant’s
judgment of sentence became final on November 13, 2012, when the time
period in which he could have filed a notice of appeal with this Court expired.
See 42 Pa.C.S. § 9545(b)(3). Thus, he had until November 13, 2013 to file
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a timely PCRA petition. The present petition, filed February 8, 2016, is
patently untimely. Thus, we must determine whether Appellant has pled
and proved any exceptions to the PCRA time limitation.
Appellant attempts to invoke the constitutional right exception
provided by 42 Pa.C.S. § 9545(b)(1)(iii), but his attempt fails.
Appellant first alleges he is entitled to relief based on Montgomery v.
Louisiana, __ U.S. __, 2016 WL 280758 (filed January 25, 2016) and
Miller v. Alabama, __ U.S. __, 132 S.Ct. 2455 (2012). In Miller, the
Supreme Court held that a life sentence without the possibility of parole for
juvenile offenders violates the constitutional right provided by the Eighth
Amendment of the United States Constitution to be free from cruel and
unusual punishment. Miller, 132 S.Ct. at 2469. In Montgomery, the
Supreme Court held that this new substantive rule applies retroactively to
cases on collateral review. Montgomery, 136 S.Ct. at 724. Neither of
these cases, nor any other United States Supreme Court or Pennsylvania
Supreme Court case, held that a lengthy sentence for an adult offender
violates one’s Eighth Amendment constitutional right or that such
substantive right applies retroactively. Thus, Appellant is not entitled to
relief under this theory.
Next, Appellant argues that his sentence included an illegal mandatory
minimum and should be vacated pursuant to Commonwealth v. Newman,
99 A.3d 86 (Pa.Super.2014) (en banc), and Commonwealth v. Wolfe, 106
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A.3d 800, 801 (Pa.Super.2014). As Appellant notes, questions regarding the
legality of a sentence “are not waivable and may be raised sua sponte by
this Court.” Commonwealth v. Watley, 81 A.3d 108, 118
(Pa.Super.2013) (en banc), appeal denied, 95 A.3d 277 (Pa.2014). In
Alleyne v. United States, ___ U.S. ___, 133 S.Ct, 2151, 186 L.Ed.2d 314
(2013), the Supreme Court of the United States held that “[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., 133 S.Ct.
at 2155. Issues pertaining to Alleyne directly implicate the legality of
sentence. Wolfe, 106 A.3d at 801. In Newman, this Court held that the
preponderance of the evidence standard in section 42 Pa.C.S. § 9712.1(c) is
unconstitutional under Alleyne.
Unfortunately for Appellant, to qualify for the constitutional right
exception to the PCRA time limitation, Appellant must plead and prove that
the Supreme Court of Pennsylvania or the Supreme Court of the United
States has recognized a constitutional right and that the right “has been
held by that court to apply retroactively.” 42 Pa.C.S. § 9545(b)(1)(iii)
(emphasis added). In Commonwealth v. Washington, 142 A.3d 810
(Pa.2016), the Supreme Court of Pennsylvania held that Alleyne does not
apply retroactively to cases pending on collateral review. Neither the
Supreme Court of Pennsylvania nor the Supreme Court of the United States
has held that Alleyne applies retroactively. Thus, Appellant’s petition
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remains time-barred, and the PCRA court correctly determined it lacked
jurisdiction to hear it.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/23/2016
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