Com. v. Clark, A.

• Court: Superior Court of Pennsylvania
• Decided: August 30, 2021
• Docket: 74 EDA 2021
• Status: Unpublished

Opinion

J-S25034-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANTHONY CLARK : : Appellant : No. 74 EDA 2021

Appeal from the PCRA Order Entered November 17, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0605321-2002

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED AUGUST 30, 2021

Anthony Clark (Clark) appeals from the order of the Court of Common

Pleas of Philadelphia County (PCRA court) dismissing his serial petition filed

under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541-9546. After

review, we affirm.

We limit our discussion of the facts to those relevant to our disposition.

On January 13, 2005, a jury found Clark guilty of, among other offenses, first

degree murder.1 After being sentenced to life imprisonment on March 16,

2005, Clark did not file any post-sentence motions or a direct appeal.

Following the reinstatement of his direct appeal rights nunc pro tunc, Clark

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 2502(a). J-S25034-21

filed a notice of appeal. We affirmed the judgment of sentence in October

2007 and the Pennsylvania Supreme Court denied Clark’s petition for

allowance of appeal in March 2008. See Commonwealth v. Clark, 943 A.2d

310 (Pa. Super. 2007) (unpublished memorandum), appeal denied, 945 A.2d

166 (Pa. 2008). Clark did not seek review in the United States Supreme Court.

Clark filed his first PCRA petition in August 2008, raising claims of

ineffective assistance of counsel. Counsel was appointed and sought to

withdraw from representation by filing a no-merit letter. In September 2010,

the PCRA court dismissed the petition and granted counsel’s request to

withdraw. Clark appealed pro se but failed to file a brief, resulting in this

Court dismissing his appeal. See Order, 9/22/11, at docket no. 2873 EDA

2010.

In April 2016, Clark filed his second PCRA petition, this time claiming

that he was serving an illegal sentence. After issuing notice of its intent to

dismiss without hearing under Pa.R.Crim.P. 907, the PCRA court formally

dismissed Clark’s petition as being untimely in August 2017. Clark did not

appeal the dismissal.

On December 7, 2018, Clark filed a petition for habeas corpus relief in

which he reasserted his legality of sentencing claim. The PCRA court, treating

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the habeas corpus petition as a PCRA petition,2 issued its Rule 907 notice of

intent to dismiss, explaining that Clark failed to acknowledge or meaningfully

address the PCRA’s jurisdictional time-bar. On November 17, 2020, the PCRA

court entered its order formally dismissing Clark’s untimely petition.

After dismissal of his petition, Clark filed a timely notice of appeal. On

appeal, Clark abandons his legality of sentencing claim, instead raising claims

of trial counsel ineffectiveness.

Before considering the merits of Clark’s petition, we must first determine

whether the petition is timely in accordance with the PCRA’s jurisdictional

time-bar.3 “A PCRA petition, including a second and subsequent petition, shall

be filed within one year of the date the underlying judgment becomes final.”

Commonwealth v. Graves, 197 A.3d 1182, 1185 (Pa. Super. 2018) (citation

omitted); see also 42 Pa.C.S. 9545(b)(1). “[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

2 We agree with the PCRA court that Clark’s self-styled petition for habeas corpus relief should be treated as a PCRA petition because his challenge to the legality of his sentence was cognizable under the PCRA and had been brought in a timely petition. See Commonwealth v. Ballance, 203 A.3d 1027, 1031 (Pa. Super. 2019) (noting that the legality of a sentence is always subject to review through a timely PCRA petition).

3 Whether a PCRA petition is timely filed is a question of law over which our

standard of review is de novo and our scope of review is plenary. Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (citations omitted).

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expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3). Because

the timeliness requirements of the PCRA are jurisdictional, no court may

consider the merits of an untimely petition. Commonwealth v. Small, 238

A.3d 1267, 1280 (Pa. 2020).

Clark’s sentence became final in 2008 when he declined to seek review

in the United States Supreme Court after the denial of his petition for

allowance of appeal on direct appeal. Because he filed his petition over 10

years after his sentence became final, his petition is facially untimely.

Consequently, Clark must plead and prove one of the exceptions to the PCRA’s

timeliness requirements:

(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 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).

Despite the PCRA court dismissing his petition as being untimely and

stating so in both its Rule 907 notice and Pa.R.A.P. 1925(a) opinion, Clark fails

to raise any timeliness exception at any point in the argument section of his

brief. See Clark’s Brief at 7-14. Instead, as noted, rather than reassert the

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legality of sentence claim alleged in his petition, he raises several claims of

trial counsel ineffectiveness. Besides these claims having already been

litigated, Clark does not plead and prove the applicability of any timeliness

exception. As a result, the PCRA court correctly concluded that it lacked

jurisdiction to consider the merits of Clark’s petition. See Small, supra.

Thus, we affirm the PCRA court’s order dismissing the petition as untimely.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/30/2021

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