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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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appeal in a non-precedential memorandum affirming the order denying 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’ 

imprisonment3for [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 petition3and 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 6

TH 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