J-A21040-15

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RICHARD C. KLINGER, II,

Appellant No. 273 EDA 2015

Appeal from the PCRA Order entered December 26, 2014,

in the Court of Common Pleas of Monroe County,

Criminal Division, at No(s): CP-45-CR-0000109-1972

BEFORE: ALLEN, MUNDY, and FITZGERALD*, JJ.

MEMORANDUM BY ALLEN, J.: FILED JULY 23, 2015

Richard C. Klinger, II (“Appellant”) appeals from the order denying his 

third petition for post-conviction relief filed pursuant to the Post Conviction 

Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.

The pertinent facts and partial procedural history have been 

summarized as follows:

In October 1971, the Commonwealth charged [Appellant] 

with the murder of Regina Prosser. [Appellant] was 

certified as an adult in this Court, pled guilty to a general 

murder charge, and requested a degree of guilt hearing 

before a three judge panel. On February 9, 1972, Judges 

Williams, Davis, and Little found [Appellant] guilty of first 

degree murder and sentenced him to a term of life 

imprisonment. At the time of sentencing, [Appellant] was 

seventeen years old.
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The Court denied [Appellant’s] Motion for Reconsideration 

of Verdict on July 3, 1973. The Supreme Court of 

Pennsylvania affirmed this Court’s judgment of sentence 

by opinion dated May 13, 1975. Commonwealth v. 

Klinger, 461 Pa. 606, 337 A.2d 569 (1975). [Appellant] 

filed multiple Post Conviction Hearing Act Petitions (“PCHA 

Petition”) which Judge Williams ultimately dismissed on 

September 7, 1982. Judge Williams refused to find 

[Appellant’s] trial counsel ineffective and concluded that 

the Court did not err when it refused to suppress 

inculpatory statements made by [Appellant]. The Superior 

Court of Pennsylvania affirmed denial of [Appellant’s] 

PCHA Petition on May 11, 1984. 

Commonwealth v. Klinger, 34 A.3d 228 (Pa. Super. 2011), unpublished 

memorandum at 1-2.

Appellant filed a second pro se petition for relief under the PCRA. After 

appointing counsel and holding an evidentiary hearing, the PCRA court 

denied Appellant’s petition. On September 15, 2011, this Court affirmed 

PCRA court’s order. Klinger, supra. On March 21, 2012, our Supreme 

Court denied Appellant’s petition for allowance of appeal. Commonwealth 

v. Klinger, 40 A.3d 1234 (Pa. 2012).

On June 28, 2012, Appellant filed a motion for habeas corpus relief 

based on the United States Supreme Court’s decision in Miller v. Alabama, 

___ U.S. ___, 132 S.Ct. 2455 (2012). The PCRA court appointed counsel 

and on August 10, 2012, Appellant filed his third PCRA petition to be 

considered along with his petition for habeas corpus relief. Thereafter, the 

matter was continued several times and then stayed until the Pennsylvania 

Supreme Court reached its decision in Commonwealth v. Cunningham, 

81 A.3d 1 (Pa. 2013).
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Following our Supreme Court’s Cunningham decision, the PCRA court 

instructed PCRA counsel to file an amended PCRA petition and petition for 

habeas corpus relief, with PCRA counsel to address the high court’s ruling in 

Cunningham. PCRA counsel complied. On August 22, 2014, the PCRA 

court held a hearing, and both parties filed supplemental legal memoranda. 

By order entered December 26, 2014, the PCRA court denied both petitions. 

This timely appeal followed. Both Appellant and the PCRA court have 

complied with Pa.R.A.P. 1925.

Appellant raises the following issue:

Whether the [PCRA] court erred in denying Appellant’s 

PCRA Petition on jurisdictional grounds since Appellant’s 

petition falls within the exception set forth in 42 Pa.C.S.A. 

§9545(b)(1)(iii).

Appellant’s Brief at 5. 

Our standard of review regarding an order dismissing a petition under 

the PCRA is whether the determination of the PCRA court is supported by the 

evidence of record and is free of legal error. Commonwealth v. Halley, 

870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will not be 

disturbed unless there is no support for the findings in the certified record. 

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001). 

Moreover, a PCRA court may decline to hold a hearing on the petition if the 

PCRA court determines that the petitioner’s claim is patently frivolous and is 
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without a trace of support either in the record or from other evidence. 

Commonwealth v. Jordan, 772 A.2d 1011 (Pa. Super. 2001).

Appellant challenges the PCRA court’s determination that his latest 

PCRA petition was untimely. The timeliness of a post-conviction petition is 

jurisdictional. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 

2010) (citation omitted). Thus, if a PCRA petition is untimely, neither an 

appellate court nor the PCRA court has jurisdiction over the petition. Id. 

“Without jurisdiction, we simply do not have the legal authority to address 

the substantive claims” raised in an untimely petition. Id.

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 

becomes final unless the petition alleges, and the petitioner proves, an 

exception to the time for filing the petition. Commonwealth v. GamboaTaylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under 

these exceptions, the petitioner must plead and prove that: “(1) there has 

been interference by government officials in the presentation of the claim; or 

(2) there exists after-discovered facts or evidence; or (3) a new 

constitutional right has been recognized.” Commonwealth v. Fowler, 930 

A.2d 586, 591 (Pa. Super. 2007) (citations omitted). A PCRA petition 

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

the date the claim first could have been presented.” Gamboa-Taylor, 753 

A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to 
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the time restrictions of the PCRA must be pled in the petition, and may not 

be raised for the first time on appeal. Commonwealth v. Burton, 936 

A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not 

raised before the lower court are waived and cannot be raised for the first 

time on appeal.”).

It is beyond dispute that Appellant filed his latest PCRA petition 

decades late. Thus, Appellant’s third petition is patently untimely unless he 

has satisfied his burden of pleading and proving that one of the enumerated 

exceptions applies. See Commonwealth v. Beasley, 741 A.2d 1258, 1261 

(Pa. 1999).

Appellant has failed to prove the applicability of any of the exceptions 

to the PCRA’s time restrictions. In support of his claim, Appellant makes two 

arguments. Relying on Miller’s companion case, Appellant first argues that 

the United States Supreme Court has held that Miller should be applied 

retroactively. Alternatively, Appellant argues that, in Cunningham, our 

Supreme Court “only denied the retroactive application of Miller, on federal 

grounds thereby leaving the opportunity for Miller to be applied 

retroactively to individuals on collateral review based on broader 

retroactivity principles based on Pennsylvania [constitutional] norms.” 

Appellant’s Brief at 20.

In rejecting Appellant’s claims, the PCRA court reasoned:

[I]n his statement of matters complained of on appeal, 

[Appellant] asserts that this Court erred in not applying 
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the rule in Miller v. Alabama, retroactively since the 

United States Supreme Court has retroactively applied its 

decision in . . . Miller to a case on post-conviction review. 

However, we have been unable to find any post-Miller

decision in which the United States Supreme Court has 

applied the right it announced in Miller retroactively on 

collateral review, and [Appellant] throughout this matter 

has been unable to cite us to any such decision. While 

[Appellant’s] brief mentions Jackson v. Hobbs, the 

companion case to Miller, and it is likely that the 

averment quoted from his [Pa.R.A.P.] 1925(b) Statement 

was meant to refer to Jackson since that case arose on 

collateral review, in Cunningham our Supreme Court 

specifically rejected the Jackson-based argument posited 

by [Appellant] and held that Jackson does not compel 

that the holding in Miller be applied retroactively. 

Cunningham, 81 A.3d at 9.

PCRA Court Opinion, 3/18/15, at 5-6 (citations omitted).

Our review of recent precedent supports the PCRA court’s discussion of 

Miller and its retroactivity. See generally, Cunningham, supra, 

Commonwealth v. Reed, 107 A.3d 137 (Pa. Super. 2014); 

Commonwealth v. Seskey, 86 A.3d 237 (Pa. Super. 2014), appeal denied, 

101 A.3d 103 (Pa. 2014); compare Commonwealth v. Christina, 114 

A.3d 419 (Pa. Super. 2015). Thus, Appellant’s first claim regarding 

retroactivity is meritless.1 

____________________________________________

1 Appellant also cites to the federal court’s decision in Songster v. Beard, 

35 F.Supp.3d 657 (E.D.Pa. 2014), in which the district court held that Miller 

applied retroactively to cases on collateral review. Because federal decisions 

that construe Pennsylvania law are not binding precedent, Commonwealth 

v. Bennett, 57 A.3d 1185, 1203 (Pa. 2012), this decision does not affect 

our decision.
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Appellant did not sufficiently raise a separate state constitutional basis 

for retroactivity in his Pa.R.A.P. 1925(b) statement. Thus, the PCRA court 

did not address the alternative argument Appellant raises within his brief, 

and the claim is waived. See Pa.R.A.P. 1925(b)(4)(vii) (providing that 

issues not raised in the Pa.R.A.P. 1925(b) statement are waived).

In sum, Appellant’s PCRA petition is facially untimely, and he has failed 

to meet his burden of proof with regard to any exception to the timeliness 

requirements of the PCRA. We therefore affirm the PCRA court’s denial of 

Appellant’s petition for post-conviction relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/23/2015
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