J-S96023-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

DAVON L. CLARK

Appellant No. 770 WDA 2016

Appeal from the PCRA Order April 28, 2016

In the Court of Common Pleas of Westmoreland County

Criminal Division at No(s): CP-65-CR-0003571-2002

BEFORE: BENDER, P.J.E., BOWES, J., AND SOLANO, J.

MEMORANDUM BY BOWES, J.: FILED JANUARY 31, 2017

Davon L. Clark appeals from the April 28, 2016 order dismissing his 

fourth PCRA petition as untimely. We affirm. 

On April 7, 2004, a jury convicted Appellant of one count each of 

burglary, attempted rape, and aggravated assault, and two counts of 

aggravated indecent assault. In the early morning hours of August 16, 

2002, Appellant entered the bedroom of K.O., and placed his fingers inside 

her vagina. After K.O. awoke and screamed, Appellant put a knife against 

her throat, and told her that he was going to have sex with her. Appellant 

commanded the victim to remove her clothing, but she pushed Appellant 

onto the floor. As he fell, Appellant inflicted injuries on the victim’s neck and 

shoulder. K.O. escaped the room and started to scream for her roommates. 

Appellant fled, but his fingerprints were discovered at the point of entry into 
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K.O.’s residence. Appellant was sentenced to fifteen years and nine months 

to thirty-one years and six months incarceration. On February 10, 2006, we 

affirmed, Commonwealth v. Clark, 897 A.2d 515 (Pa.Super. 2006), and 

Appellant did not seek further review. 

Appellant filed a timely PCRA petition on March 7, 2006, counsel was 

appointed, and counsel filed an amended petition. After an evidentiary 

hearing, PCRA relief was denied. On appeal, we affirmed the denial of PCRA 

relief. Commonwealth v. Clark, 964 A.2d 431 (Pa. Super. 2008), appeal 

denied, 970 A.2d 428 (Pa. 2009). On June 24, 2009, Appellant filed a 

second PCRA petition pro se. The court ordered PCRA counsel to continue 

representation, and PCRA counsel filed a no-merit letter and petition to 

withdraw. On January 7, 2010, PCRA relief was denied for a second time, 

and counsel was permitted to withdraw. 

In 2011, Appellant filed three additional pro se documents consisting 

of a motion for waiver of collection of costs, fines and restitution, a motion 

to modify sentence, and a motion asking to file a motion to modify sentence 

nunc pro tunc. Those motions were denied that year. On December 4, 

2014, Appellant filed his third request for post-conviction relief and also 

asked that counsel be appointed. Relief was denied on January 26, 2015. 

On March 7, 2016, Appellant filed his fourth PCRA petition, claiming 

entitlement to relief under Miller v. Alabama, 132 S.Ct. 2455 (2012), and 

Montgomery v. Louisiana, 136 S.Ct. 718 (2016). The United States 
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Supreme Court held in Miller that it was unconstitutional under the Eighth 

Amendment’s prohibition against cruel and usual punishment to sentence a 

juvenile homicide offender to a mandatory term of life imprisonment without 

parole, and Montgomery accorded full retroactive effect to the Miller

decision. Appellant’s March 7, 2016 PCRA petition was filed within sixty days 

of when Montgomery was decided. The PCRA court concluded that Miller, 

and, concomitantly, Montgomery were inapplicable in this action and 

denied relief. This appeal followed. 

On appeal, Appellant asserts that his present PCRA petition is timely 

filed as Montgomery created a new constitutional right that is applicable to 

him. Specifically, he maintains that Montgomery rendered retroactive the 

United States Supreme Court’s decision in Alleyne v. United States, 133 

S.Ct. 2151 (2013). In Alleyne, the Court held that, under the Sixth 

Amendment’s right to a jury trial, facts “that increase mandatory minimum 

sentences must be submitted to the jury” and found beyond a reasonable 

doubt.” Id. at 2163. 

Initially, we note that this Court reviews the “denial of PCRA relief to 

determine whether the findings of the PCRA court are supported by the 

record and free of legal error.” Commonwealth v. Roane, 142 A.3d 79, 86 

(Pa. Super. 2016) (quoting Commonwealth v. Treiber, 121 A.3d 435, 444 

(Pa. 2015)). 
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All PCRA petitions must be filed within one year of the date a 

defendant’s judgment becomes final unless an exception to the one-year 

time restriction applies. 42 Pa.C.S. § 9545(b)(1). If a PCRA petition is 

untimely, “neither this Court nor the trial court has jurisdiction over the 

petition.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014) 

(citation omitted); see also Commonwealth v. Chester, 895 A.2d 520, 

522 (Pa. 2006). “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, we affirmed Appellant’s judgment of sentence on 

February 10, 2006, and it became final thirty days thereafter, or on March 

12, 2006, since he did not seek review in our Supreme Court. Appellant had 

until March 12, 2007, to file a timely PCRA petition, and the present March 

7, 2016, is nearly nine years out of time. 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 
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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).

Appellant invokes the newly-recognized constitutional right exception, 

claiming that Montgomery rendered the new constitutional right announced 

in Alleyne retroactive. Appellant’s claim is misguided. As the PCRA court 

noted, Montgomery held that Miller was retroactive. Miller ruled that it 

was unconstitutional to sentence a juvenile homicide offender to an 

automatic term of life imprisonment without parole. Herein, Appellant was 

not convicted of homicide, and a sentence of life imprisonment without 

parole was not imposed upon him. Additionally, the sentencing transcript 

indicates that Appellant was approximately twenty years old when he 

committed this offense. N.T. Sentencing, 9/29/04, at 191. Since Appellant 

was not a juvenile on August 16, 2002, Miller is inapposite for that 

additional reason. See Commonwealth v. Lawson, 90 A.3d 1 (Pa.Super. 

2014) (adult homicide offenders do not fall under Miller’s holding). 

Montgomery, which discussed only the Miller case, did not retroactively 

apply a constitutional right enjoyed by Appellant. 

Additionally, Alleyne, which Appellant invokes on appeal, is not 

retroactive in the PCRA setting. Commonwealth v. Washington, 142 A.3d 

810, 811 (Pa. 2016) (holding that Alleyne does not apply retroactively “to 
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attacks upon mandatory minimum sentences advanced on collateral 

review.”). 

As the PCRA court did not abuse its discretion or commit an error of 

law, we affirm. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/31/2017