Com. v. Foy, D. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DENNIS FOY
Appellant No. 355 WDA 2015
Appeal from the PCRA Order January 22, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0010528-1987
CP-02-CR-0010548-1987
CP-02-CR-0010549-1087
BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY JENKINS, J.: FILED OCTOBER 22, 2015
Dennis Foy appeals pro se from an order dismissing his petition
seeking relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §
9541 et seq. We affirm.
Between February and August of 1987, Foy broke into the homes of
four elderly women and raped each woman in her bed. At the beginning of
each attack, Foy covered the victim’s head with a blanket and tied her hands
and feet.
On April 5, 1988, a jury found Foy guilty of multiple counts of rape and
burglary and one count of involuntary deviate sexual intercourse at the
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*
Retired Senior Judge assigned to the Superior Court.
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above caption numbers. On January 3, 1989, the trial court sentenced Foy
to an aggregate sentence of 100-200 years’ imprisonment. Foy filed a
motion for reconsideration of sentence, which the court denied. Foy filed a
timely appeal, and this Court affirmed his judgment of sentence.
Commonwealth v. Foy, 576 A.2d 366 (Pa.Super.1990). The Supreme
Court granted Foy’s petition for allowance of appeal but subsequently
affirmed his judgment of sentence. Commonwealth v. Foy, 612 A.2d 1349
(Pa.1992).
In 1994, Foy filed a PCRA petition, which he subsequently amended
twice through counsel. On December 10, 2007, the PCRA court denied PCRA
relief. Foy filed a timely appeal. On May 27, 2010, this Court affirmed at
173 WDA 2008. The Supreme Court denied Foy’s petition for allowance of
appeal.
In 2012, Foy filed another PCRA petition, which the PCRA court
dismissed without a hearing later that year. Foy did not appeal.
On October 21, 2014, Foy filed his third PCRA petition, the petition
presently in question, claiming that his sentence exceeded the lawful
maximum under Alleyne v. United States, 133 S. Ct. 2151 (2013), and
Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc).1 On
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1
Alleyne held that under the Sixth Amendment, any fact that increases a
mandatory minimum sentence must be submitted to the jury and found
beyond a reasonable doubt. Id., 133 S.Ct. at 2155. In Newman, this
(Footnote Continued Next Page)
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November 14, 2014, the PCRA court issued a notice of intent to dismiss
Foy’s petition without a hearing.2 On January 22, 2015, the PCRA court
entered an order dismissing the petition. On February 19, 2015, Foy mailed
a timely notice of appeal.3 Both Foy and the PCRA court complied with
Pa.R.A.P. 1925.
Foy raises one issue in this appeal:
Whether the [PCRA] court conferred subject matter jurisdiction
to entertain and reach merits review of the claims advanced
therein under the Due Process Clause of the Fifth Amendment
and the notice and jury trial guarantees of the Sixth
Amendment, any fact (other than a prior conviction) that
increases the maximum penalty for a crime must be charged in
the indictment, submitted to a jury, and proven beyond a
reasonable doubt. [T]he [PCRA] court erred in failing to grant
relief where [Foy’s] state and federal constitutional rights to a
fundamentally fair sentencing hearing and to due process of law
were violated when the trial judge failed to articulate legally
_______________________
(Footnote Continued)
Court held that 42 Pa.C.S. § 9712.1, which requires a mandatory minimum
sentence for certain drug offenses committed with firearms, is
unconstitutional under Alleyne. Id., 99 A.3d at 99, 103.
2
The PCRA court did not appoint counsel to represent Foy. In a second or
subsequent PCRA petition, the court must appoint counsel when the
petitioner satisfies the court that he is unable to afford or procure counsel
and an evidentiary hearing is necessary to resolve the issue(s) in his
petition. Pa.R.Crim.P. 904(D). The court must also appoint counsel when
the interests of justice require it. Pa.R.Crim.P. 904(E). For the reasons
given below, Foy does not satisfy Rule 904(D) or (E), so he was not entitled
to counsel during proceedings on this petition.
3
The record reflects that on February 19, 2015, Foy handed his notice of
appeal to prison officials for mailing. Under the prisoner mailbox rule, a pro
se notice of appeal from the denial of PCRA relief is deemed filed when the
petitioner hands the notice to prison officials. Commonwealth v. Ousley,
21 A.3d 1238, 1242 n. 3 (Pa.Super.2011).
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sufficient reasons for the imposition of minimum and maximum
sentences that were as severe as the law permitted and for all
the sentences to be served consecutively rather than
concurrently: [Foy’s] due process rights were violated when the
trial judge used factors, (other than a prior conviction), to justify
his rationale for the severity of the minimum and maximum
sentences the court imposed in violation of appellant’s due
process and fundamental fairness rights.
Brief for Appellant, at 4.
Our standard of review is well-settled:
We review an order dismissing a petition under the PCRA in the
light most favorable to the prevailing party at the PCRA level.
This review is limited to the findings of the PCRA court and the
evidence of record. We will not disturb a PCRA court’s ruling if it
is supported by evidence of record and is free of legal error. This
Court may affirm a PCRA court’s decision on any grounds if the
record supports it. We grant great deference to the factual
findings of the PCRA court and will not disturb those findings
unless they have no support in the record. However, we afford
no such deference to its legal conclusions. Further, where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review is plenary.
Commonwealth v. Rykard, 55 A.3d 1177, 1183–84 (Pa.Super.2012)
(some citations and footnote omitted).
Before addressing the merits of Wright’s claims, we must first consider
the timeliness of his PCRA petition, because it implicates the jurisdiction of
both this Court and the PCRA court. Commonwealth v. Williams, 35 A.3d
44, 52 (Pa.Super.2011). “Pennsylvania law makes clear that no court has
jurisdiction to hear an untimely PCRA petition.” Id. To “accord finality to
the collateral review process[,]” the PCRA “confers no authority upon this
Court to fashion ad hoc equitable exceptions to the PCRA time-bar[.]”
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Commonwealth v. Watts, 23 A.3d 980, 983 (Pa.2011). “It is undisputed
that a PCRA petition must be filed within one year of the date that the
judgment of sentence becomes final.” Commonwealth v. Hernandez, 79
A.3d 649, 651 (Pa.Super.2013); 42 Pa.C.S. § 9545(b)(1). A judgment of
sentence “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). “This time requirement is mandatory and
jurisdictional in nature, and the court may not ignore it in order to reach the
merits of a petition.” Id. “Without jurisdiction, we simply do not have the
legal authority to address the substantive claims.” Commonwealth v.
Seskey, 86 A.3d 237, 241 (Pa.Super.2014).
A facially untimely petition may be received, however, where any of
the PCRA’s three limited exceptions to the PCRA time bar are met.
Hernandez, 79 A.3d at 651. These exceptions include:
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.
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42 Pa.C.S. § 9545(b)(1)(i)-(iii). The petitioner maintains the burden of
pleading and proving that one of these exceptions applies. Commonwealth
v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa.2008).
Further,
[a] petition invoking one of these exceptions must be filed within
sixty days of the date the claim could first have been presented.
42 Pa.C.S. § 9545(b)(2). In order to be entitled to the
exceptions to the PCRA’s one-year filing deadline, the petitioner
must plead and prove specific facts that demonstrate his claim
was raised within the sixty-day time frame under section
9545(b)(2).
Hernandez, 79 A.3d at 651-652.
Finally, a heightened standard applies to a second or subsequent PCRA
petition to avoid “serial requests for post-conviction relief.”
Commonwealth v. Jette, 23 A.3d 1032, 1043 (Pa.2011). “A second or
subsequent request for relief under the PCRA will not be entertained unless
the petitioner presents a strong prima facie showing that a miscarriage of
justice may have occurred.” Commonwealth v. Hawkins, 953 A.2d 1248,
1251 (Pa.2006). In a second or subsequent post-conviction proceeding, “all
issues are waived except those which implicate a defendant’s innocence or
which raise the possibility that the proceedings resulting in conviction were
so unfair that a miscarriage of justice which no civilized society can tolerate
occurred.” Commonwealth v. Williams, 660 A.2d 614, 618
(Pa.Super.1995).
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Foy’s judgment of sentence became final on December 17, 1992, the
deadline for appealing to the United States Supreme Court from the
Pennsylvania Supreme Court’s decision in his direct appeal. His present
PCRA petition, filed almost 22 years after his judgment of sentence became
final, is facially untimely. Thus, Foy must plead and prove that his petition
falls under one of the exceptions to the one year statute of limitations within
section 9545(b)(1)(i)-(iii). He fails to meet this burden. He does not plead
or prove that government interference prevented him from filing a timely
PCRA petition. He claims that Alleyne and Newman constitute “newly
discovered facts” under section 9545(b)(1)(ii), but our Supreme Court has
held that decisional law cannot constitute “newly discovered evidence” for
purposes of this subsection. Commonwealth v. Watts, 23 A.3d 980, 986-
87 (Pa.2011). Nor does Foy satisfy subsection 9545(b)(1)(iii), because
Alleyne and its progeny do not apply retroactively to cases on
postconviction review. Commonwealth v. Riggle, 119 A.3d 1058
(Pa.Super.2015).
Therefore, the PCRA court properly dismissed Foy’s third PCRA
petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/2015
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