J-S57018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

DAVID EUGENE FERRARA,

                            Appellant                  No. 1765 WDA 2015


                 Appeal from the PCRA Order October 22, 2015
               In the Court of Common Pleas of Jefferson County
              Criminal Division at No(s): CP-33-CR-0000486-2005


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED OCTOBER 6, 2016

        Appellant, David Eugene Ferrara, appeals pro se from the October 22,

2015 order denying his third petition for collateral relief filed pursuant to the

Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

        On September 18, 2006, a jury found Appellant guilty of sexual

assault, involuntary deviate sexual intercourse, statutory sexual assault, and

aggravated indecent assault.           At the time the crimes were committed,

Appellant was thirty years old and the victim was thirteen years old.         On

June 20, 2007, Appellant was sentenced to a term of ten to twenty years of

incarceration for involuntary deviate sexual intercourse, a consecutive term

of five to ten years for statutory sexual assault, and a consecutive term of
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*
    Retired Senior Judge assigned to the Superior Court.
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five to ten years for aggravated indecent assault.            N.T., Sentencing,

6/20/07, at 29-30. The conviction for sexual assault merged for purposes of

sentencing. Id. This resulted in an aggregate sentence of twenty to forty

years of incarceration.      Additionally, Appellant was classified as a sexually

violent predator.

       Appellant filed a timely direct appeal, and this Court affirmed the

judgment of sentence. Commonwealth v. Ferrara, 974 A.2d 1180, 2153

WDA 2007 (Pa. Super. filed April 20, 2009) (unpublished memorandum).

The Supreme Court subsequently denied Appellant’s petition for allowance of

appeal.    Commonwealth v. Ferrara, 981 A.2d 217, 230 WAL 2009 (Pa.

filed October 1, 2009). Appellant did not petition for a writ of certiorari in

the United States Supreme Court.

       On December 7, 2009, Appellant filed a pro se letter with the trial

court in which he requested PCRA relief.           In response, the trial court

appointed counsel to represent Appellant in his pursuit of collateral relief.

Order, 12/15/09.       Throughout the PCRA process, despite having counsel,

Appellant filed numerous pro se documents with the PCRA court.           On May

17, 2010, appointed counsel filed a no-merit letter and motion to withdraw

pursuant to Turner/Finley1 addressing issues that Appellant sought to


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1
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc) (explaining the
(Footnote Continued Next Page)


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argue before the PCRA court.             On May 24, 2010, the PCRA court sent

Appellant notice of its intent to dismiss the PCRA petition pursuant to

Pa.R.Crim.P. 907.        In an order filed on June 10, 2010, the PCRA court

permitted counsel to withdraw and thereafter denied PCRA relief.           On July

12, 2010, Appellant filed an appeal to this Court.          We affirmed the PCRA

court’s order, and the Supreme Court denied review.            Commonwealth v.

Ferrara, 29 A.3d 839, 1112 WDA 2010 (Pa. Super. filed April 19, 2011)

(unpublished memorandum), appeal denied, 34 A.3d 826, 355 WAL 2011

(Pa. filed November 29, 2011).

      On May 17, 2012, Appellant filed his second PCRA petition. On May

23, 2012, the PCRA court sent Appellant notice of its intent to dismiss the

petition pursuant to Pa.R.Crim.P. 907.            In the Rule 907 notice, the PCRA

court informed Appellant that it intended to dismiss his second PCRA petition

because it was untimely, having been filed more than one year after

Appellant’s judgment of sentence became final on December 30, 2009.2 On

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(Footnote Continued)

procedure for counsel seeking to withdraw from representation in collateral
proceedings).
2
  Appellant’s judgment of sentence became final on December 30, 2009,
ninety days after the Pennsylvania Supreme Court denied Appellant’s
petition for allowance of appeal and the time in which to pursue an appeal in
the United States Supreme Court expired. 42 Pa.C.S. § 9545(b)(3); U.S.
Sup.Ct.R. 13. Therefore, in order for Appellant to file a timely first or
subsequent PCRA petition, it needed to be filed on or before December 30,
2010. 42 Pa.C.S. § 9545(b)(1).




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June 27, 2012, the PCRA court dismissed Appellant’s second PCRA petition.

Thereafter, Appellant filed a timely notice of appeal. This Court affirmed the

PCRA court’s order dismissing Appellant’s PCRA petition as untimely and

concluded that no exceptions to the PCRA time-bar applied,3 and the

Supreme Court denied review.            Commonwealth v. Ferrara, 1158 WDA

2012,    81   A.3d    993    (Pa.    Super.    filed   May   8,   2013)   (unpublished

memorandum), appeal denied, 298 WAL 2013, 83 A.3d 167 (Pa. filed

December 23, 2013). Appellant did not request certiorari.


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3
  As noted, a PCRA petition must be filed within one year from the date that
judgment of sentence becomes final. However, an untimely PCRA petition
may be received when the petition alleges, and the petitioner proves, that
one of three limited exceptions to the time for filing the petition, set forth at
42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii), is met. The exceptions to the
timeliness requirement are:

        (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), (ii), and (iii).




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        On August 19, 2015, Appellant filed his third PCRA petition.    In this

petition, Appellant argued that his sentences were illegal pursuant to

Alleyne v. U.S., 133 S.Ct. 2151 (2013), and Commonwealth v. Hopkins,

117 A.3d 247 (Pa. 2015).4          On September 21, 2015, the PCRA court sent

Appellant notice of its intent to dismiss the petition pursuant to Pa.R.Crim.P.

907.    In the Rule 907 notice, the PCRA court informed Appellant that it

intended to dismiss Appellant’s third PCRA petition because it was untimely,

and neither Alleyne nor Hopkins were retroactive. On October 22, 2015,

the PCRA court dismissed Appellant’s third PCRA petition. This timely appeal

followed. Both Appellant and the PCRA court have complied with Pa.R.A.P.

1925.

        When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”     Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014) (en banc)). This Court is limited to determining whether the evidence

of record supports the conclusions of the PCRA court and whether the ruling

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4
   Alleyne provided that any fact, other than a prior conviction, that
increases the penalty for a crime beyond the statutory minimum, must be
submitted to a jury and proved beyond a reasonable doubt. Id., 131 S.Ct.
at 2160–2161. Hopkins held that 18 Pa.C.S. § 6317, which required a
mandatory minimum sentence for a conviction for distributing controlled
substances within 1,000 feet of a school, was unconstitutional under
Alleyne. Hopkins, 117 A.3d at 262.



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is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that

are supported in the record and will not disturb them unless they have no

support in the certified record.    Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa. Super. 2014).

      As noted above, a first or subsequent PCRA petition must be filed

within one year of the date that the judgment of sentence becomes final, 42

Pa.C.S. § 9545(b)(1), and Appellant’s judgment of sentence became final on

December 30, 2009.        42 Pa.C.S. § 9545(b)(1).    This time requirement is

mandatory and jurisdictional in nature, and it may not be ignored in order to

reach the merits of the petition. Commonwealth v. Davis, 916 A.2d 1206,

1208 (Pa. Super. 2007). Appellant did not file the instant PCRA petition until

August 19, 2015. Thus, we agree with the PCRA court’s conclusion that the

underlying PCRA petition is patently untimely.

      Appellant avers that he has satisfied one of the limited exceptions to

the PCRA filing deadline set forth in 42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).

Appellant’s Brief at 2.    Appellant argues that his sentence is illegal as he

received mandatory minimum sentences in violation of Alleyne. Appellant’s

Brief at 2-3. He claims that the Alleyne and Hopkins decisions are newly




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discovered facts under 42 Pa.C.S. § 9545(b)(1)(ii), and thus, he has

satisfied an exception to the PCRA time-bar. Id.5

       After review, while mandatory minimum sentences were applicable to

Appellant’s crimes at the time of sentencing, the trial court did not impose

mandatory minimum sentences. Rather, the trial court reviewed the facts of

the case, pertinent legal authority, and other relevant factors, and it opted

instead to impose the statutory maximum sentences.                     N.T., Sentencing,

6/20/07, at 28-30.          Thus, Alleyne’s prohibition on the imposition of

mandatory minimum sentences had no impact on Appellant’s sentences.

Commonwealth v. Samuel, 102 A.3d 1001, 1008 (Pa. Super. 2014).

Accordingly, even if Appellant’s third PCRA petition was timely, Alleyne

would afford him no relief.

       Assuming for the sake of argument that mandatory minimum

sentences were imposed in violation of Alleyne and Hopkins, it would not

alter the outcome of this appeal. This Court has ruled that judicial decisions

are   not   facts   for   purposes     of      42   Pa.C.S.   §   9545(b)(1)(ii).   See

Commonwealth v. Cintora, 69 A.3d 759, 763 (“[A] judicial opinion does

not qualify as a previously unknown ‘fact’ capable of triggering the

timeliness exception set forth in section 9545(b)(1)(ii) of the PCRA.”). Thus,
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5
  Appellant’s pro se brief is not a model of clarity. Much of it is an amalgam
of rambling claims of error, legal maxims of dubious import, and irrelevant
case citations. However, we will give Appellant the benefit of the doubt and
extrapolate from his brief the most cogent interpretation of his arguments.



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Appellant has not properly invoked an exception to the PCRA’s filing

requirements for a timely petition under 42 Pa.C.S. § 9545(b)(1)(ii).

Commonwealth v. Whitehawk, ___A.3d___, 2016 PA Super 185 (Pa.

Super. filed August 24, 2016).

            Finally, assuming that Alleyne announced a new
      constitutional right, neither our Supreme Court nor the United
      States Supreme Court has held that Alleyne is to be applied
      retroactively to cases in which the judgment of sentence had
      become final, and this Court has recognized that a new rule of
      constitutional law is applied retroactively to cases on collateral
      review only if the United States Supreme Court or the
      Pennsylvania Supreme Court specifically holds it to be
      retroactively applicable to those cases. Commonwealth v.
      Phillips, 31 A.3d 317, 320 (Pa.Super.2011), appeal denied, 615
      Pa. 784, 42 A.3d 1059 (2012). To the contrary, our Supreme
      Court recently filed an opinion in Commonwealth v.
      Washington, ––– A.3d ––––, 2016 WL 3909088 (Pa. July 19,
      2016) wherein it addressed the retroactive effect of Alleyne and
      held “that Alleyne v. United States, ––– U.S. ––––, 133 S.Ct.
      2151, 186 L.Ed.2d 314 (2013), does not apply retroactively to
      cases pending on collateral review. ...” Id. at *8.

Whitehawk, 2016 PA Super 185, at *4.

      For the reasons set forth above, Appellant is not entitled to relief. His

third PCRA petition was properly denied as untimely, and no exceptions

applied because Appellant did not receive a mandatory minimum sentence in

violation of Alleyne and Hopkins.     Finally, even if Alleyne and Hopkins

had been implicated, the holdings are not retroactive to Appellant’s collateral

appeal. Accordingly, we affirm the order denying Appellant’s PCRA petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/6/2016




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