J-S40024-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

VANDER K. CLAYBORNE

Appellant No. 3354 EDA 2015

Appeal from the PCRA Order October 22, 2015

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0009696-1990

BEFORE: BOWES, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY SOLANO, J.: FILED AUGUST 19, 2016

Appellant, Vander K. Clayborne, appeals pro se from the order 

dismissing Appellant’s fourth petition filed pursuant to the Post Conviction 

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, for lack of jurisdiction. We 

affirm.

The PCRA court summarized the pertinent factual and procedural 

history of this case as follows:

On October 3, 1991, [Appellant] entered a 

guilty plea to murder generally for the killing of 

Jeffrey Savage and to aggravated assault for 

shooting Raymond Craig. The Honorable Frank T. 

Hazel held a non-jury degree of guilt hearing from 

October 7, 1991 – October 9, 1991 and found 

[Appellant] guilty of first degree murder. A jury was 

empaneled for the death penalty phase but was 

unable to reach a unanimous verdict. As a result, on 

September 14, 1992, [Appellant] was sentenced to a 
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term of life imprisonment plus 78-240 months’ 

incarceration.

[Appellant] filed a direct appeal and on August 

9, 1993, the Pennsylvania Superior Court affirmed 

[Appellant’s] judgment of sentence by memorandum 

opinion. On December 15, 1994, the Pennsylvania 

Supreme Court denied [Appellant’s] petition for 

allowance of appeal.

On April 18, 1995, [Appellant] filed a PCRA 

petition. Counsel was appointed and on May 22, 

1995, filed an amended petition. An evidentiary 

hearing took place on June 12, 1995. The PCRA 

court denied the petition.

On July 28, 2011, [Appellant] filed a petition 

entitled “Petition for Writ of Habeas Corpus and 

Declaratory Judgment.” The court treated the 

petition as a second PCRA. On August 22, 2011, the 

PCRA court filed its notice of intent to dismiss 

without a hearing based upon its finding that the 

petition was untimely and that [Appellant] failed to 

satisfy any of the exceptions to the time bar. 

[Appellant] responded to the notice of intent to 

dismiss on September 28, 2011 and the petition was 

dismissed on September 29, 2011.

[Appellant] filed a notice of appeal on 

December 13, 2011. The Pennsylvania Superior 

Court affirmed the dismissal on December 12, 2012. 

On January 17, 2013, [Appellant] filed an application 

for reconsideration, which was denied on March 14, 

2013.

On July 25, 2014, [Appellant] filed this instant 

Petition, entitled “Petition for Writ of Habeas Corpus, 

with Motion to Vacate Waivers and Judgment of 

Conviction/Sentence.” The case was reassigned to 

this Court. [Appellant] raised claims of ineffective 

assistance of counsel as well as an illegal sentence 

claim; therefore, this Court treated the motion as 

[Appellant’s] third PCRA petition. On September 15, 

2014, this Court issued a notice of intent to dismiss 
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without a hearing. [Appellant] responded on 

October 7, 2014. On October 8, 2014, this Court 

issued an Order dismissing the Petition. [Appellant] 

filed a notice of appeal on November 6, 2014.

On June 8, 2015, the Pennsylvania Superior 

Court affirmed the [PCRA c]ourt’s dismissal of 

Appellant’s untimely third PCRA petition. On June 

24, 2015, Appellant filed an Application for 

Reargument/Reconsideration, which was denied on 

August 6, 2015.

On August 17, 2015, a mere eleven days after 

the Superior Court’s denial of Appellant’s 

reconsideration application, Appellant filed a “Motion 

to Renew PCRA/Habeas Petition” which this Court 

treated as his fourth PCRA petition. Appellant raises 

the exact same issues that were in his third PCRA 

petition but adds that he is entitled to relief pursuant 

to Commonwealth v. Hopkins, 117 A.2d 247 (Pa. 

2015). 

This Court issued a notice of intent to dismiss 

on August 18, 2015. [Appellant] wrote to this Court 

and asked for additional time to file a response, 

which this Court granted. Appellant filed a response 

on September 8, 2015. On October 22, 2015, this 

Court dismissed the Petition. On November 6, 2015, 

Appellant filed a notice of appeal.

PCRA Court Opinion, 11/12/15, at 1-3. As noted above, Appellant 

unsuccessfully sought post-conviction relief in prior PCRA petitions filed in 

1995, 2011, and 2014. This is Appellant’s fourth PCRA petition. 

On this appeal, Appellant raises the following issues, as stated:

1. Did the lower court deny Appellant due process by 

not allowing Appellant a hearing and-or assistance 

of counsel, thereby violating his rights secured by 

the U.S. Constitution, Amendments 1, 5, 6, 14?
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2. May the state legislature or courts suspend the 

writ of habeas corpus and did they deny Appellant 

due process in violation of Amendments 1, 5, 14 

and Article 1, § 9(2) and Pennsylvania 

Constitution Article 1, § 14?

Appellant’s Brief at 4.

The PCRA court dismissed Appellant’s petition for lack of jurisdiction 

because the petition was not filed with the time limits set forth in the PCRA. 

In fact, the court noted that Appellant’s fourth PCRA petition “is facially 

untimely by approximately twenty years.” PCRA Court Opinion, 11/12/15, at 

4. We agree.

This Court’s standard of review regarding an order dismissing a 

petition under the PCRA is “to determine whether the determination of the 

PCRA court is supported by the evidence of record and 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. Barndt, 74 A.3d 

185, 191-92 (Pa. Super. 2013) (internal citations omitted). 

The timeliness of a post-conviction petition is jurisdictional. 

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

Generally, a petition for relief under the PCRA, including a second or 

subsequent petition, must be filed within one year of the date the judgment 

is final unless the petition alleges, and the petitioner proves, one of the 

three statutory exceptions to these time limitations set forth in Section 
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9545(b)(1) of the statute.

1

 See 42 Pa. C.S. § 9545(b). A PCRA petition 

invoking one of these statutory exceptions must “be filed within 60 days of 

the date the claims could have been presented.” Hernandez, 79 A.3d at 

651-52; see also 42 Pa.C.S. § 9545(b)(2). Any asserted exceptions to the 

time limitations must be alleged in the petition to the PCRA court; they may 

not be raised for the first time on appeal. Commonwealth v. Burton, 936 

A.2d 521, 525 (Pa. Super. 2007)

Here, Appellant’s judgment of sentence became final on March 15, 

1995 (ninety days after our Supreme Court denied his petition for allowance 

of appeal). See Commonwealth v. Clayborne, No. 3380 EDA 2014, slip 

op. at 6 (Pa. Super. June 8, 2015). Appellant’s latest PCRA petition is 

____________________________________________

1 The exceptions to the timeliness requirement are:

(i) the failure to raise the claim previously was the result of 

interference of 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).

 
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therefore patently untimely unless he has satisfied his burden of pleading 

and proving that one of the enumerated exceptions applies. See

Hernandez. 

As the PCRA court noted, Appellant’s latest PCRA petition “fail[s] to 

plead any facts that, if proven, would satisfy any of the exceptions to the 

timeliness requirement.” PCRA Court Opinion, 11/12/15, at 5. In particular, 

the petition fails to plead any ground under Section 9545(b)(1) that would 

entitle Appellant to litigate the two issues that he frames in his brief, which 

he has filed twenty years after his judgment of sentence became final.

In his brief, Appellant asserts that he is entitled to post-conviction 

relief because he was illegally sentenced in light of Alleyne v. United 

States, ___ U.S. ___, 133 S.Ct. 2151 (2015) (any fact that by law increases 

a mandatory minimum sentence must be treated as an element of the 

offense and found by a jury beyond a reasonable doubt). He also cites 

Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015) (under Alleyne, 

mandatory minimum sentencing aspects of Section 6317 of Crimes Code are 

constitutionally infirm). See Appellant’s Brief at 5. But the constitutional 

rights recognized in those decisions may be a basis for PCRA relief only if the

decisions apply retroactively. 42 Pa.C.S. § 9545(b)(1)(iii). The Supreme 

Court of Pennsylvania has held that “Alleyne does not apply retroactively to 

cases pending on collateral review,” and that a sentence imposed in violation 

of Alleyne is not in fact “illegal.” Commonwealth v. Washington, ___ 
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A.3d ____, 2016 WL 3909088, *8 (Pa. July 19, 2016). That holding 

necessarily disposes of “illegal sentencing” claims under Hopkins as well. 

See id. at *1. Accordingly, Appellant’s citation to Alleyne and Hopkins

cannot save his petition from the PCRA’s jurisdictional bar.

Based on the foregoing, the PCRA court correctly concluded that it 

lacked jurisdiction to consider Appellant’s latest PCRA petition. We therefore 

affirm the PCRA court’s order denying Appellant post-conviction relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/19/2016