J-S43024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                       v.

DWAYNE A. GOUDY

                            Appellant                No. 1676 MDA 2015


                Appeal from the PCRA Order September 4, 2015
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0000622-2009
                                          CP-36-CR-0000625-2009
                                          CP-36-CR-0000626-2009
                                          CP-36-CR-0000627-2009



BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                      FILED SEPTEMBER 15, 2016

        Appellant, Dwayne A. Goudy, appeals pro se from the order dismissing

his second petition filed pursuant to the Post Conviction Relief Act (“PCRA”) 1

as untimely. We affirm.

        A jury convicted Goudy of numerous sexual offenses stemming from

his sexual abuse of his stepdaughter. Thereafter, the trial court imposed an

aggregate sentence of 22 to 44 years’ imprisonment. Relevant to this

appeal, Goudy’s sentence was based, in part, upon application of the

mandatory minimum sentencing provision 42 Pa.C.S.A. § 9718(a)(1), due to

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1
    42 Pa.C.S.A. §§ 9541-9546.
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the age of his stepdaughter. Goudy’s post-sentence motion was denied. This

Court affirmed the judgment of sentence on May 10, 2011. Our Supreme

Court denied allocator on November 10, 2011. Goudy did not seek a writ of

certiorari from the United States Supreme Court.

       On June 8, 2012, Goudy timely filed his first pro se PCRA petition. The

PCRA court subsequently dismissed that petition, after providing Rule 907

notice. This Court affirmed the dismissal of the petition. On August 11,

2015, Goudy filed the instant pro se PCRA petition, his second, alleging,

inter alia, that his sentence is illegal based on the United States Supreme

Court’s decision in Alleyne v. United States, 133 S.Ct. 2151 (2013).2

Goudy later filed an amended PCRA petition. On September 4, 2015, the

PCRA court dismissed Goudy’s petition as untimely, after providing Rule 907

notice. This timely appeal followed.

       On appeal, Goudy claims that the PCRA court erred in dismissing his

petition as untimely where the sentence he is serving is illegal. See

Appellant’s Brief, at 7-8. We disagree.
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2
  In Alleyne, the United States Supreme Court held that any fact, other
than a prior conviction, that triggers application of a mandatory minimum
sentence must be proven beyond a reasonable doubt before the factfinder.
See 133 S.Ct., at 2155. In Commonwealth v. Wolfe, 106 A.3d 800, 806
(Pa. Super. 2014), a case on direct appeal, a panel of this Court held section
9718 of the Sentencing Code unconstitutional in light of Alleyne and this
Court’s decisions in Commonwealth v. Newman, 99 A.3d 86 (Pa. Super.
2014) (en banc) and Commonwealth v. Valentine, 101 A.3d 801 (Pa.
Super. 2014). However, Wolfe has not been held to apply retroactively to
cases on collateral review.



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      Our standard of review of a trial court order granting or denying
      relief under the PCRA calls upon us 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, 191-192 (Pa. Super. 2013)

(citation and internal quotation marks omitted).

      Before we may assess the merits of Goudy’s claims, we must first

consider the timeliness of his PCRA petition, as it implicates the jurisdiction

of this Court and the PCRA court. See Commonwealth v. Miller, 102 A.3d

988, 992 (Pa. Super. 2014).

      A PCRA petition, including a second or subsequent one, must be
      filed within one year of the date the petitioner’s judgment of
      sentence became final, unless he pleads and proves one of the
      three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
      judgment becomes final at the conclusion of direct review by this
      Court or the United States Supreme Court, or at the expiration
      of the time for seeking such review. 42 Pa.C.S.[A.] §
      9545(b)(3).      The   PCRA’s     timeliness    requirements  are
      jurisdictional; therefore, a court may not address the merits of
      the issues raised if the petition was not timely filed. The
      timeliness requirements apply to all PCRA petitions, regardless of
      the nature of the individual claims raised therein. The PCRA
      squarely places upon the petitioner the burden of proving an
      untimely petition fits within one of the three exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (citations and

footnote omitted).

      Here, Goudy’s judgment of sentence became final on February 8,

2012, when the filing period for a certiorari petition expired. See 42

Pa.C.S.A. § 9545(b)(3); U.S. Sup.Ct. R. 13(1) (“a petition for a writ of


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certiorari to review a judgment in any case … is timely when it is filed with

the Clerk of this Court within 90 days after entry of the judgment[]”). Thus,

his second PCRA petition, filed over four years later on August 11, 2015, is

patently untimely. Unless Goudy pleaded and proved one of the statutory

exceptions to the time-bar, the PCRA court lacked jurisdiction to review his

petition. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      Section 9545 of the PCRA provides three limited exceptions that allow

for review of an untimely PCRA petition, which are as follows.

      (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.

Id. A petitioner asserting a timeliness exception must file a petition within

60 days of the date the claim could have been presented. See 42 Pa.C.S.A.

§ 9545(b)(2).

      In the present case, Goudy invokes the “newly discovered fact”

exception under section 9545(b)(1)(ii) and argues that he is entitled to relief

based upon the United States Supreme Court’s decision in Alleyne. See

Appellant’s Brief, at 9-13. He further asserts that his petition was timely filed


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because “he filed [it] within sixty (60) days of learning of the United States

Supreme Court decision in Alleyne.” Id., at 9. We disagree.

      Goudy’s claim that he complied with the 60-day window under section

9545(b)(2) is incorrect. Alleyne was decided on June 17, 2013. Goudy filed

the instant PCRA petition on August 11, 2015, more than two years later.

The date when Goudy learned of the Alleyne decision is inconsequential.

See Commonwealth v. Brandon, 51 A.3d 231, 235 (Pa. Super. 2012)

(holding that appellant’s claim, alleging that a recently filed judicial decision

was a newly-discovered fact, failed because it did not comply with section

9545(b)(2), as “the sixty-day period begins to run upon the date of the

underlying judicial decision [,]” not the date appellant became aware of the

decision). Ignorance of the law does not excuse Goudy’s failure to file his

petition within 60 days of the Alleyne decision. See id. “Neither the court

system nor the correctional system is obliged to educate or update prisoners

concerning changes in case law.” Id. (citation omitted). Because Goudy

failed to file his petition within 60 days of Alleyne, his claim must fail. See

id.; 42 Pa.C.S.A. § 9545(b)(2).

      We note that even if Goudy had timely raised his claimed exception,

his argument would still fail because “[o]ur Courts have expressly rejected

the notion that judicial decisions can be considered newly-discovered facts

which would invoke the protections afforded by section 9545(b)(1)(ii).”

Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013) (citation

omitted). We also observe that we have specifically held that Alleyne does

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not fall within the newly-recognized constitutional right exception to section

9545(b)(1), since it has not been held to be retroactive by either our

Supreme Court or the United States Supreme Court. See Miller, 102 A.3d at

995.

       Due to the foregoing reasons, we conclude that Goudy has not met his

burden of proving that his patently untimely petition falls within one of the

three limited exceptions to the PCRA’s jurisdictional time-bar.3 Accordingly,

we affirm the PCRA court’s order dismissing his petition for relief.

       Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/15/2016




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3
  Since we do not have jurisdiction over Goudy’s claims, we need not
address his argument regarding merger.



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