J-S47026-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JEFFREY B. CLARKE

Appellant No. 9 MDA 2015

Appeal from the PCRA Order December 4, 2014

In the Court of Common Pleas of Dauphin County

Criminal Division at No(s): CP-22-CR-0000743-1997

CP-22-CR-0000744-1997

BEFORE: ALLEN, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.: FILED AUGUST 07, 2015

Jeffrey B. Clarke appeals, pro se, from the order entered December 4, 

2014, in the Court of Common Pleas of Dauphin County, dismissing his 

fourth petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 

Pa.C.S. §§ 9541-9546. Clarke seeks relief from the judgment of sentence of 

25 to 75 years’ incarceration, imposed on November 20, 1998, following a 

revocation of his probation.1 On appeal, Clarke presents three claims in 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 The trial court imposed five consecutive terms of five to 15 years’ 

incarceration on five robbery counts, and four consecutive terms of ten 

years’ probation on four counts of conspiracy to commit robbery. On the 

remaining count of conspiracy to commit theft, the trial court imposed a 

sentence of time served. The trial court applied mandatory minimums 

pursuant to 42 Pa.C.S. § 9712 (“Sentences for offenses committed with 

firearms.”).
J-S47026-15

- 2 -

support of his contention that he is entitled to PCRA relief because his 

sentence is illegal pursuant to Alleyne v. United States, 133 S.Ct. 2151 

(2013). Based on the following, we affirm.

The PCRA court set forth the relevant factual and procedural history as 

follows:

[Clarke] was arrested on October 31, 1996, and again on 

November 10, 1996. On August 18, 1997, [Clarke] plead guilty 

to five (5) counts [of] Robbery3, four (4) counts [of] Criminal 

Conspiracy to Commit Robbery4, and one (1) count Criminal 

Conspiracy to Commit Theft5. Thereafter, [Clarke] was 

sentenced by the Honorable Lawrence F. Clark, Jr., now retired, 

to five (5) years of intermediate punishment with the first eleven 

(11) months to be served at the Dauphin County Work Release 

Center, followed by ten (10) years of probation.

___________________

3 18 Pa.C.S.A. § 3701 §§ (A)(1).

4 18 Pa.C.S.A. § 903.

5 18 Pa.C.S.A. § 903.

___________________

On June 1, 1998, [Clarke] was arrested for a violation of the 

conditions of his intermediate punishment. On November 20, 

1998, [Clarke] appeared before Judge Clark for a revocation 

hearing, at which time his intermediate punishment and 

probation were revoked. [Clarke] was resentenced to an 

aggregate incarceration term of twenty-five (25) to seventy-five 

(75) years, followed by forty (40) years of probation. [Clarke] 

was represented at the revocation hearing by Jason Kutulakis, 

Assistant Public Defender.

[Clarke] filed a Motion to Modify Sentence, which was 

subsequently denied by Judge Clark. Attorney Kutulakis filed a 

timely direct appeal on [Clarke’s] behalf; the judgment [of] 

sentence was affirmed by the Superior Court on December 6, 

1999. [Clarke] filed a Petition for Allowance of Appeal to the 

Supreme Court of Pennsylvania on January 4, 2000, which was 

subsequently denied on May 9, 2000.
J-S47026-15

- 3 -

First PCRA

On April 30, 2001, [Clarke] filed his first pro se PCRA petition. 

Jeffrey Engle, Esquire[,] was appointed by the Court as PCRA 

counsel.8 On August 1, 2001, [Clarke’s] PCRA petition was 

denied. [Clarke] appealed the denial to the Superior Court; the 

denial was affirmed on July 23, 2002. [Clarke] filed a Petition 

for Allowance of Appeal to the Supreme Court of Pennsylvania on 

August 22, 2002, which was subsequently denied on December 

24, 2002.

___________________

8

Procedural history prior to 2003 was provided by 

[Clarke] in his Amended Petition under PostConviction Relief Act, filed June 20, 2001.

___________________

Second PCRA

On February 27, 2003, [Clarke] filed his second pro se PCRA 

petition. William Shreve, Esquire[,] was appointed by the Court 

as PCRA counsel. On August 4, 2003, counsel filed Motion to 

Withdraw pursuant to the Post-Conviction Collateral Relief Act on 

May 11, 2004, denied [Clarke’s] PCRA request and granted court 

appointed counsel’s motion to withdraw. On May 11, 2004, 

Judge Clark granted counsel’s motion to withdraw and denied 

[Clarke’s] PCRA petition. [Clarke] appealed the denial to the 

Superior Court; the denial was affirmed on January 13, 2005.

Third PCRA

On September 20, 2011, [Clarke] filed his third pro se PCRA 

petition. Jonathan Crisp, Esquire[,] was appointed by the Court 

as PCRA counsel. On November 23, 2011, counsel filed a Motion 

to Withdraw with a Turner-Finley “No Merit Letter”. Judge Clark 

granted Counsel Motion to Withdraw on November 29, 2011. On 

December 28, 2011, [Clarke’s] PCRA petition was denied. 

[Clarke] appealed the denial to the Superior Court; the denial 

was affirmed on July 30, 2012. [Clarke] filed a Petition for 

Allowance of Appeal to the Supreme Court of Pennsylvania on 

August 23, 2012, which was subsequently denied on January 7, 

2013.

Fourth PCRA Petition

On September 5, 2014, [Clarke] filed his fourth pro se PCRA 

petition. In [Clarke’s] PCRA petition, he claimed that he is 
J-S47026-15

- 4 -

eligible for relief because of a Constitutional violation; the 

imposition of a sentence greater than the lawful maximum; and 

a proceeding in a tribunal without jurisdiction. [Clarke] alleges 

an illegal sentence because additional factors were used to 

determine the sentence that was not submitted to the jury14.

___________________

14 [Clarke] was not sentenced following a trial by 

jury; he was sentenced based upon guilty plea.

___________________

PCRA Court Opinion, 11/5/2014, at 1-3 (some footnotes omitted). On 

November 5, 2014, the PCRA court issued Pa.R.Crim.P. 907 notice of its 

intent to dismiss the petition without a hearing. On November 20, 2014, 

Clarke responded to the Pa.R.Crim.P. 907 notice. On December 4, 2014, the 

PCRA court dismissed Clarke’s petition as untimely filed. This appeal 

followed.2

Our standard of review is as follows:

Our standard of review of an order denying PCRA relief is 

whether the record supports the PCRA court’s determination and 

whether the PCRA court’s decision is free of legal error. The 

PCRA court’s findings will not be disturbed unless there is no 

support for the findings in the certified record.

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citations 

omitted).

____________________________________________

2 On January 14, 2015, the PCRA court ordered Clarke to file a Pa.R.A.P. 

1925(b) concise statement of errors complained of on appeal. He complied 

with the court’s directive, and filed a Rule 1925(b) statement on February 2, 

2015. On February 23, 2015, the PCRA court filed a Statement in Lieu of 

Rule 1925(a) opinion.
J-S47026-15

- 5 -

“Crucial to the determination of any PCRA appeal is the timeliness of 

the underlying petition. Thus, we must first determine whether the instant 

PCRA petition was timely filed.” Commonwealth v. Smith, 35 A.3d 766, 

768 (Pa. Super. 2011), appeal denied, 53 A.3d 757 (Pa. 2012). A PCRA 

petition must be filed within one year of the date that a judgment of 

sentence becomes final. See 42 Pa.C.S. § 9545(b)(1); see also

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). This 

time requirement is mandatory and jurisdictional in nature, and the court 

may not ignore it in order to reach the merits of the petition. Hernandez, 

supra, at 651.

Here, Clarke’s judgment of sentence became final on August 7, 2000, 

90 days after the Pennsylvania Supreme Court denied his petition for 

allowance of appeal, and the time for filing a writ of certiorari to the United 

State Supreme Court had expired. See Pa.C.S. § 9545(b)(3); see also U.S. 

Supreme Court Rule 13 (petition for writ of certiorari is deemed timely when 

filed within 90 days after discretionary review is denied by the Pennsylvania 

Supreme Court). Therefore, pursuant to Section 9545(b)(1), Clarke had one 

year from the date his judgment of sentence became final to file a PCRA 

petition. See Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), 

cert. denied, 134 S.Ct. 2695 (2014). The instant petition was not filed until 

September 5, 2014, over 14 years later, making it patently untimely.

An untimely PCRA petition may, nevertheless, be considered if one of 

the following three exceptions applies:
J-S47026-15

- 6 -

(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 ascertained 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). Furthermore, a PCRA petition alleging any of 

the exceptions under Section 9545(b)(1) must be filed within 60 days of 

when the PCRA claim could have first been brought. 42 Pa.C.S. § 

9545(b)(2).

Based on the inter-related nature of Clarke’s issues, relating to 

Alleyne, we will address them together. 3 First, Clarke alleges that the 

____________________________________________

3

In Alleyne, supra, the United States Supreme Court held “[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. at 2155. 

Applying this mandate, our Courts have held that Alleyne renders numerous 

mandatory minimum sentencing statutes unconstitutional. See 

Commonwealth v. Hopkins, ___ A.3d ___ [2015 WL 3949099] (Pa. 2015) 

(holding 18 Pa.C.S. § 6317 is unconstitutional and non-severable); 

Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc) 

(finding 42 Pa.C.S. § 9712.1 unconstitutional). See also Commonwealth 

v. Vargas, 108 A.3d 858 (Pa. Super. 2014) (en banc) (invalidating 18 

Pa.C.S. § 7508); Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 

2014) (invalidating 42 Pa.C.S. § 9718); Commonwealth v. Valentine, 101 

A.3d 801 (Pa. Super. 2014) (invalidating 42 Pa.C.S. §§ 9712 and 9713).
J-S47026-15

- 7 -

PCRA court erred in denying his PCRA petition because “it did not give 

consideration to the substantial change in law dictated by Alleyne, [supra], 

which made [the provisions of] 42 Pa.C.S. §§ 9712, 9714, and 9716 

unconstitutional.” Clarke’s Brief at 8. Specifically he states, “[i]t is now 

unconstitutional for a judge to use [an] additional element that the jury 

assessment [of the] facts did not entail to increase the prescribe range of 

penalties to which criminal defendant is exposed.” Id. He further states he 

was not charged or convicted of possessing a firearm during the crime and 

the Commonwealth waived its right to use the “mandatory minimum firearm 

enhancement.” Id. at 9. In his second argument, Clarke claims the 

application of the “mandatory minimum firearm enhancement” provision at 

his revocation sentencing hearing violates Alleyne. He states the trial court 

used a “preponderance of evidence” standard set forth in McMillian v. 

Pennsylvania, 477 U.S. 79 (U.S. 1986), which was overruled by Alleyne. 

See Id. at 11-12. In his final argument, Clarke claims that the trial court 

violated the terms of the negotiated plea agreement by “applying the 

mandatory minimum firearm enhancement and imposing consecutive 

sentencing” when re-sentencing Clarke at the revocation hearing 

proceeding. See Clarke’s Brief at 13.4

____________________________________________

4

It bears mention that in his direct appeal, Clarke argued “the trial court 

erred by applying the mandatory [minimum], which the Commonwealth 

previously had agreed to waive.” See Commonwealth v. Clarke, 750 A.2d 

(Footnote Continued Next Page)
J-S47026-15

- 8 -

With respect to these arguments, Clarke does not invoke any statutory 

exception to the PCRA time-bar. See 42 Pa.C.S. § 9545(b)(1)(i-iii), supra. 

Moreover, even assuming that based on Alleyne, Clarke is attempting to 

take advantage of the “new retroactive constitutional right” exception, set 

forth in Section 9545(b)(1)(iii), Clarke’s arguments fail for the following 

reasons.

First, Clarke filed his fourth PCRA petition on September 5, 2014, more 

than a year after Alleyne was decided on June 17, 2013. In 

Commonwealth v. Brandon, 51 A.3d 231 (Pa. Super. 2012), this Court 

held “the sixty-day period begins to run upon the date of the underlying 

judicial decision.” Id. at 235, citing Commonwealth v. Baldwin, 789 A.2d 

728, 731 (Pa. Super. 2001), appeal denied, 863 A.2d 1141 (Pa. 2004). 

Therefore, Clarke failed to file his petition within 60 days of the date the 

claim could have been presented under Section 9545(b)(2). Consequently, 

the PCRA petition is untimely on this basis.

Second, even if Clarke’s petition had been filed within 60 days of 

Alleyne, “neither our Supreme Court, nor the United States Supreme Court 

has held that Alleyne is to be applied retroactively to cases in which the 

(Footnote Continued) _______________________

365 [185 MDA 1999] (Pa. Super. 1999) (unpublished memorandum, at 7), 

appeal denied, 758 A.2d 660 (Pa. 2000). This Court rejected the argument 

stating, the trial court “clearly informed [Clarke] that the Commonwealth 

only agreed to waive the [mandatory minimum] so that he would be eligible 

to participate in the [intermediate punishment] program.” Id. at 8 (citation 

omitted).
J-S47026-15

- 9 -

judgment of sentence had become final.” Commonwealth v. Miller, 102 

A.3d 988, 995 (Pa. Super. 2014). Therefore, Alleyne does not provide 

Clarke with an exception under Section 9545(b)(1)(iii) to the PCRA’s timing 

requirements. Accordingly, none of Clarke’s arguments overcome the 

PCRA’s time-bar. 

Because Clarke is unable to demonstrate the applicability of any 

statutory exception to the timing requirements of the PCRA, we affirm the 

court’s dismissal of Clarke’s fourth PCRA petition.5

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/7/2015

____________________________________________

5 Although our reasoning differs from the PCRA court, we may affirm the 

PCRA court on any basis. See Commonwealth v. Reid, 107 A.3d 137, 144 

(Pa. Super. 2014).