Com. v. Clark, M. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MEARL TRAPPER CLARK
Appellant No. 604 WDA 2015
Appeal from the PCRA Order March 30, 2015
In the Court of Common Pleas of Butler County
Criminal Division at No(s): CP-10-CR-0001765-2001
BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 16, 2016
Mearl Trapper Clark appeals from the March 30, 2015 order dismissing
his pro se PCRA petition. We affirm.
On August 5, 2002, Appellant pled guilty to two counts each of
involuntary deviate sexual intercourse, and the Commonwealth nol prossed
two counts each of sexual abuse of children, and possession of child
pornography as well as other offenses. These charges arose from
Appellant’s long-standing sexual abuse of his two minor stepdaughters, both
of whom were under ten years old when victimized.
On December 23, 2002, Appellant was found to be a sexually violent
predator (“SVP”), and sentenced to ten to thirty years imprisonment
followed by ten years probation. On March 19, 2004, we affirmed, rejecting
*
Retired Senior Judge assigned to the Superior Court.
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his challenge to the court’s determination that he was an SVP.
Commonwealth v. Clark, 850 A.2d 5 (Pa.Super. 2004) (unpublished
memorandum). Appellant filed a timely PCRA petition on May 4, 2004, and
that petition was denied. Appellant’s appeal from that denial was dismissed
due to his failure to file a brief. Appellant filed a second PCRA petition,
which was dismissed as untimely. On appeal, we affirmed. Commonwealth
v. Clark, 22 A.3d 1083 (Pa.Super. 2010) (unpublished memorandum).
On March 2, 2015, Appellant filed a third PCRA petition, which he
styled as a motion to vacate an illegal sentence. He claimed that his
sentence, which was imposed pursuant to 42 Pa.C.S. § 9718, relating to
sentences for offenses against infant persons and imposing mandatory
minimum sentences according to the age of a victim, was unconstitutional
under Alleyne v. United States, 133 S. Ct. 2151 (2013).1 After issuing
notice of its intent to do so, the PCRA court dismissed Appellant’s petition.
This pro se appeal followed. Appellant did not comply with the trial court’s
directive, which was issued after this appeal was filed, for him to file a
Pa.R.A.P. 1925(b) statement. Appellant avers herein that his mandatory
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1
In Alleyne, the United States Supreme Court held that any fact, other
than a prior conviction, that triggers application of a mandatory minimum
sentence must be proven beyond a reasonable doubt before the factfinder.
Section 9718 was held unconstitutional based upon Alleyne.
Commonwealth v. Wolfe, 106 A.3d 800 (Pa.Super. 2014), appeal granted,
121 A.3d 433 (Pa. 2015).
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minimum sentence is illegal under Alleyne and that the trial court erred in
determining that it was not authorized to vacate it.2 Appellant’s brief at 4.
Initially, we note that our “standard of review of the denial of a PCRA
petition is limited to examining whether the evidence of record supports the
court’s determination and whether its decision is free of legal error.”
Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa.Super. 2015). Before
we proceed to the merits of Appellant’s contention that his sentence was
rendered illegal under Alleyne, we must determine whether Appellant’s
March 2, 2015 PCRA petition was timely filed as that issue implicates our
jurisdiction. Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014). If
a PCRA petition is untimely, “neither this Court nor the trial court has
jurisdiction over the petition.” Id. at 992 (quoting Commonwealth v.
Seskey, 86 A.3d 237, 241 (Pa.Super. 2014)); see Commonwealth v.
Chester, 895 A.2d 520, 522 (Pa. 2006).
Any PCRA petition, “including a second or subsequent petition, shall be
filed within one year of the date the judgment becomes final” unless an
exception to the one-year time restriction applies. 42 Pa.C.S. § 9545(b)(1).
Accordingly, we must determine when Appellant’s judgment of sentence
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2
Appellant’s challenge to his mandatory minimum sentence relates to its
legality, and cannot be waived. Commonwealth v. Foster, 960 A.2d 160
(Pa.Super. 2008), aff’d by an equally divided court, 17 A.3d 332 (Pa. 2011).
Hence, we decline to find waiver based upon Appellant’s failure to file a
Pa.R.A.P. 1925(b) statement.
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became final. “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, since Appellant did not
file a petition for allowance of appeal, Appellant’s sentence became final on
April 18, 2004, thirty days after our March 19, 2004 affirmance on direct
appeal. Appellant had until April 18, 2005, to file a timely PCRA petition,
and the present March 2, 2015 petition is untimely by ten years.
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
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). “Any petition invoking an exception provided
in paragraph (1) shall be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
Herein, Appellant does not acknowledge that his petition was untimely
and does not invoke any exception. He continually insists that his issue
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relates to the legality of his sentence and maintains that such an issue
cannot be waived. However, our Supreme Court has held specifically that,
“Although legality of sentence is always subject to review within the PCRA,
claims must still first satisfy the PCRA's time limits or one of the exceptions
thereto.” Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999); see
also Commonwealth v. Jackson, 30 A.3d 516 (Pa.Super. 2011).
Accordingly, Appellant’s brief fatally fails to address the crucial issue
on appeal, which is how his petition falls within one of the exceptions to the
PCRA’s one-year time bar. We further observe that we have held specifically
that, since Alleyne has not been held to be retroactive by either our
Supreme Court or the United States Supreme Court, it does not fall within
the newly-recognized constitutional right exception to § 9545(b)(1). Miller,
supra. Finally, Alleyne was decided on June 17, 2013, and Appellant did
not file the present PCRA petition until March 2, 2015. Thus, he did not
present his claim within sixty days of when it could have been presented,
and his PCRA petition is untimely for that additional reason.
Having determined that the present PCRA petition was untimely, we
affirm the denial of PCRA relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/16/2016
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