Com. v. Mead, C., Jr. ( 2017 )

J-S41026-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CLARK EMMANUEL MEAD, JR.
Appellant No. 67 MDA 2017
Appeal from the PCRA Order November 30, 2016
In the Court of Common Pleas of Schuylkill County
Criminal Division at No(s): CP-54-CR-0000306-2012
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED JULY 18, 2017
Clark Emmanuel Mead, Jr., appeals from the order, entered in the
Court of Common Pleas of Schuylkill County, dismissing as untimely his
second petition brought pursuant to the Post Conviction Relief Act (“PCRA”).1
We affirm.
On June 5, 2012, a jury convicted Mead of six counts of involuntary
deviate sexual intercourse2 (F1), six counts of indecent assault3 (F1), two
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*
Retired Senior Judge assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
2
18 Pa.C.S.A. § 3123(b).
3
18 Pa.C.S.A. § 3126(a)(7).
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counts of corruption of minors4 (F3), and two counts of endangering the
welfare of a child5 (F3). The trial court sentenced him to an aggregate term
of not less than 27½ to not more than 55 years’ incarceration on September
27, 2012. Mead filed a post-sentence motion requesting a new trial, which
the court denied on November 26, 2012. This Court affirmed Mead’s
judgment of sentence on December 13, 2013 and, on July 2, 2014, the
Pennsylvania Supreme Court denied his petition for allowance of appeal.
Mead filed a counseled petition for post-conviction relief on July 1,
2015, which the PCRA court denied on October 1, 2015. This Court affirmed
the denial on August 11, 2016. Mead did not file a petition for allowance of
appeal with our Supreme Court.
On September 27, 2016, Mead filed a second PCRA petition, styled as
a “Motion to Vacate Illegal Sentence.”6 The PCRA court issued a notice of
intent to dismiss the petition as untimely, without a hearing, pursuant to
Pa.R.Crim.P. 907 on November 2, 2016. Mead objected to the court’s Rule
907 notice and invoked the after-recognized constitutional right exception to
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4
18 Pa.C.S.A. § 6301(a)(1).
5
18 Pa.C.S.A. § 4304(a)(1).
6
The PCRA subsumes all forms of collateral relief to the extent a remedy is
available under the Act. 42 Pa.C.S.A. § 9542. As claims asserting illegal
sentences are cognizable under the PCRA, Mead’s motion was properly
treated as a PCRA petition.
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the PCRA’s time bar.7 See United States v. Alleyne, 133 S. Ct. 2151
(2013). The trial court dismissed Mead’s petition on November 30, 2016.
Mead filed a timely notice of appeal followed by a Pa.R.A.P. 1925(b)
concise statement of matters complained of on appeal. The trial court filed
its Rule 1925(a) opinion on January 17, 2017.
On appeal, Mead raises the following issues for our review:
Did the Trial Court commit an err of law in refusing to vacate the
portion of [Mead’s] sentence since the statute under which
[Mead] was sentenced[,] 42 Pa.C.S.A. § 9718[,] has been
declared unconstitutional, null and void?
Did the Trial Court fail to correct a patent[ly] illegal and
unconstitutional sentence?
Did the Trial Court fail to take judicial notice in that 42 Pa.C.S.A.
§ 9542 does grant relief for those serving illegal sentences, yet
failed to adhere to said statute?
Brief of Appellant, at 4.
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 record. We will not disturb a PCRA court’s ruling if it
is supported by evidence of record and is free of legal error.
This Court may affirm a PCRA court’s decision on any grounds if
the record supports it. Further, we grant great deference to the
factual findings of the PCRA court and will not disturb those
findings unless they have no support in the record. However, we
afford no such deference to its legal conclusions. Where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review plenary.
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7
42 Pa.C.S.A. § 9545(b)(1)(iii).
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Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (internal
citations omitted)
Here, the PCRA court dismissed Mead’s petition as untimely filed. The
PCRA requires that any petition must be filed within one year of the date the
judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). “A judgment becomes
final at the conclusion of direct review . . . or at the expiration of time for
seeking the review.” 42 Pa.C.S.A. § 9545(b)(3).
Mead’s judgment of sentence became final on September 30, 2014, at
the expiration of the 90-day time limit for seeking review in the U.S.
Supreme Court. See id.; U.S.Sup.Ct.R. 13(1). Thus, he had one year from
that date, or until September 30, 2015, to file a timely PCRA petition. See
42 Pa.C.S.A. § 9545(b)(1). He did not file the instant petition until
September 27, 2016, approximately one year late. Accordingly, the PCRA
court had no jurisdiction to entertain Mead’s petition unless he established
one of the exceptions to the jurisdictional time bar.
A PCRA court will entertain an otherwise untimely petition if the
petitioner pleads and proves that: (1) the failure to raise a timely claim was
the result of interference by government officials; (2) 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 (3) the right asserted
is a constitutional right that has been recognized by the United States
Supreme Court or the Supreme Court of Pennsylvania after the one-year
time period, and has been held to apply retroactively. Id. Any petition
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invoking one of these exceptions must be filed within 60 days of the date the
claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2).
Mead’s claims are all grounded in his assertion that his sentence
should be vacated pursuant to Alleyne v. United States, 133 S. Ct. 2151
(2013), which he asserts established a new constitutional right that applies
retroactively.8 However, in Commonwealth v. Washington, 142 A.3d 810
(Pa. 2016), the Supreme Court of Pennsylvania held that although Alleyne
establishes a new rule of federal constitutional law, it does not apply
retroactively to cases pending on collateral review. Washington, supra at
820. Accordingly, Mead is not entitled to relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/18/2017
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8
In Alleyne, the Court held that an element of an offense that increased
the mandatory minimum sentence must be found by a jury beyond a
reasonable doubt. 133 S. Ct. at 2155.
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