Com. v. Foley, K.
Com. v. Foley, K. No. 1259 WDA 2016
| Pa. Super. Ct. | Feb 27, 2017Background
- Kevin J. Foley was convicted of first‑degree murder in March 2009 and sentenced to life imprisonment on June 1, 2009.
- Direct appeal affirmed by Superior Court on February 15, 2012; Pennsylvania Supreme Court denied allowance on January 4, 2013; judgment of sentence became final April 4, 2013 (after U.S. Supreme Court certiorari period).
- Foley filed a pro se first PCRA petition on December 30, 2013; counsel was appointed, an amended petition was litigated, and the PCRA court denied relief on December 22, 2014; Superior Court affirmed and Pennsylvania Supreme Court denied allowance on March 29, 2016.
- While the first PCRA appeal was pending, Foley filed a second pro se PCRA petition on February 24, 2016 (facially beyond the one‑year PCRA filing deadline).
- Foley argued the petition fit the newly‑recognized‑right exception under Alleyne and Montgomery; the PCRA court issued a Rule 907 notice and dismissed the petition on August 5, 2016.
- Superior Court affirmed, holding the petition was untimely and Alleyne‑based claims do not give rise to a retroactive collateral‑review right under Pennsylvania precedent and U.S. Supreme Court retroactivity law as applied here.
Issues
| Issue | Foley's Argument | Commonwealth / PCRA Court Argument | Held |
|---|---|---|---|
| Timeliness of PCRA petition | Petition timely under newly recognized constitutional‑right exception based on Alleyne | Petition is facially untimely (filed > one year after sentence became final); Foley fails to plead a timely exception | Petition untimely; dismissal affirmed |
| Applicability of Alleyne to sentence | Alleyne requires jury find facts increasing penalty; life sentence unconstitutional under Alleyne | Alleyne decisions invalidating mandatory minimum statutes do not make Foley's claim retroactive on collateral review | Alleyne claim does not render this untimely petition timely |
| Retroactivity after Montgomery | Montgomery establishes that constitutional decisions are retroactive on collateral review | Montgomery is limited to Miller juvenile‑LWOP context and does not make Alleyne retroactive here | Montgomery inapplicable; Foley did not raise Miller claim |
| PCRA jurisdictional bar | Exceptions to timeliness must be pleaded and proved within 60 days of when claim could have been presented | Foley did not meet § 9545(b) exceptions or the 60‑day requirement | PCRA court lacked jurisdiction to reach merits; dismissal proper |
Key Cases Cited
- Commonwealth v. Allen, 48 A.3d 1283 (Pa. Super. 2012) (standard of review for PCRA denials)
- Commonwealth v. Leggett, 16 A.3d 1144 (Pa. Super. 2011) (PCRA timeliness is jurisdictional and exceptions narrowly construed)
- Alleyne v. United States, 133 S. Ct. 2151 (U.S. 2013) (facts increasing penalty are elements to be found by a jury)
- Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (invalidating statutory mandatory minimum under Alleyne principles)
- Commonwealth v. Mosley, 114 A.3d 1072 (Pa. Super. 2015) (invalidating mandatory minimum sentencing provision under Alleyne)
- Montgomery v. Louisiana, 136 S. Ct. 718 (U.S. 2016) (holding Miller retroactive to cases on collateral review)
- Miller v. Alabama, 132 S. Ct. 2455 (U.S. 2012) (mandatory life without parole for juveniles unconstitutional)
- Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016) (Alleyne does not apply retroactively on collateral review in Pennsylvania)