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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


*
    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

____________________________________________


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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