Com. v. Troche, A., Jr. ( 2018 )

J-S70036-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALBERT TROCHE, JR. :
:
Appellant : No. 724 MDA 2017
Appeal from the PCRA Order April 4, 2017
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0002322-2007,
CP-06-CR-0002688-2007
BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED JANUARY 17, 2018
Albert Troche, Jr., appeals pro se from the order entered April 4, 2017,
in the Court of Common Pleas of Berks County, that dismissed as untimely his
third petition filed pursuant to the Pennsylvania Post Conviction Relief Act, 42
Pa.C.S. §§ 9541-9546. Troche seeks relief from the judgment of sentence to
serve an aggregate term of 12 years and one month to 50 years’
imprisonment, imposed on August 19, 2009, after he was found guilty by a
jury of one count of delivery of a controlled substance,1 one count of
possession with intent to deliver cocaine,2 and two counts of possession with
____________________________________________
1 35 P.S. § 780-113(a)(16)
2 35 P.S. § 780-113(a)(30).
J-S70036-17
intent to deliver marijuana.3 Troche presents four claims, which we have
distilled to two contentions, namely, (1) that his PCRA petition is timely
pursuant to the PCRA’s newly discovered facts exception, 42 Pa.C.S. §
9545(b)(1)(ii) and (b)(2), and (2) that he is serving an illegal sentence, and
this Court may consider the legality of his sentence in this appeal sua sponte.
Based upon the following, we affirm on the basis of the PCRA court’s opinion.
The facts of this case are fully set out in this Court’s decision affirming
Troche’s judgment of sentence. See Commonwealth v. Troche, 13 A.3d
983 [1512 MDA 2009; 1513 MDA 2009] (Pa. Super. 2010) (unpublished
memorandum). Troche has filed two previous PCRA petitions that were
unsuccessful.4 See Commonwealth v. Troche, 131 A.3d 100 [362 MDA
2015] (Pa. Super. August 21, 2015) (unpublished memorandum), appeal
denied, 158 A.3d 73 (Pa. September 23, 2016); Commonwealth v. Troche,
100 A.3d 295 [1210 MDA 2013] (Pa. Super. March 5, 2014) (unpublished
memorandum) and 100 A.3d 296 [1211 MDA 2013] (Pa. Super. March 5,
2014) (unpublished memorandum), appeal denied, 101 A.3d 786 (Pa. 2014).
____________________________________________
3 35 P.S. § 780-113(a)(30).
4 Troche also attempted to file a PCRA petition while his appeal from the
dismissal of his first PCRA petition was pending, and this petition was
summarily dismissed by the PCRA court on June 9, 2014.
-2-
J-S70036-17
On February 9, 2017, Troche filed the present PCRA petition. On March
7, 2017, the PCRA court issued a Pa.R.Crim.P. 907 notice of intent to dismiss,
and the PCRA court dismissed the petition on April 4, 2017. This appeal
followed.5, 6
“Our review of a PCRA court’s decision is limited to examining whether
the PCRA court's findings of fact are supported by the record, and whether its
conclusions of law are free from legal error.” Commonwealth v. Cox, 146
A.3d 221, 226 n.9 (Pa. 2016) (citation omitted).
Here, Troche does not dispute that his present PCRA petition, which was
filed over five years after the expiration of the time limitation under the PCRA,
is facially untimely. See Commonwealth v. Troche, supra, 131 A.3d 100
(Pa. Super. 2015) (unpublished memorandum, at 7) (“[Troche’s] judgment of
sentence became final on [October 14, 2010], and he had one year therefrom,
or until October 14, 2011, to file a facially timely PCRA petition.”). However,
Troche maintains his PCRA petition should be reviewed because he falls within
an exception to the PCRA time bar, specifically, the exception for newly
discovered facts, 42 Pa.C.S. § 9545(b)(1)(ii).
____________________________________________
5 On April 13, 2017, Troche filed a motion for permission to amend “newly
discovered fact,” which was dismissed by order dated April 20, 2017, as the
PCRA petition had already been dismissed.
6Troche timely complied with the order of the PCRA court to file a Pa.R.A.P.
1925(b) statement of errors complained of on appeal. See Troche’s Concise
Statement, 5/22/2017.
-3-
J-S70036-17
Section 9545(b) provides, in relevant part:
(b) Time for filing petition.
(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the
petitioner proves that:
…
(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.
(2) Any petition invoking an exception provided in paragraph (1)
shall be filed within 60 days of the date the claim could have been
presented.
42 Pa.C.S. § 9545(b)(1)(ii), (iii) and (2).
Here, Troche relies on the “newly discovered facts” of the decisions of
Commonwealth v. Sunealitis, 153 A.3d 414 (Pa. Super. 2016), and
Commonwealth v. Burton, 158 A.3d 618 (Pa. 2017). However, it is well
settled that “subsequent decisional law does not amount to a new ‘fact’ under
[S]ection 9545(b)(1)(ii)[.]” Commonwealth v. Watts, 23 A.3d 980, 987
(Pa. 2011). See also Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa.
Super. 2013) (rejecting “the notion that judicial decisions can be considered
newly-discovered facts which would invoke the protections afforded by section
-4-
J-S70036-17
9545(b)(1)(ii)”). Therefore, we conclude Troche’s petition fails to satisfy the
newly discovered facts exception to the PCRA time bar.
We add that Sunealitis does not satisfy the exception for a newly-
recognized constitutional right that has been held to apply retroactively, 42
Pa.C.S. § 9545(b)(1)(iii), because Sunealitis did not establish a newly-
recognized constitutional right. Rather, Sunealitis involved the application
of the United States Supreme Court decision in Alleyne v. United States,
570 U.S. 99 (2013),7 in a direct appeal. Furthermore, with regard to Alleyne,
our Pennsylvania Supreme Court has held that Alleyne does not apply
retroactively to cases pending on collateral review. See Commonwealth v.
Washington, 142 A.3d 810, 820 (Pa. 2016). Therefore, Troche’s petition
does not satisfy Section 9545(b)(1)(iii).
Accordingly, because Troche’s petition fails to satisfy any exception to
the PCRA time bar, we conclude the petition is untimely and no court has
jurisdiction to review the petition.
In his second issue, Troche contends the PCRA court was endowed with
the ability to entertain his legality of sentencing claim “sua sponte.” In
____________________________________________
7 In Alleyne, the Supreme Court held that “any fact that increases the
mandatory minimum is an ‘element’ that must be submitted to the jury” and
found beyond a reasonable doubt. Alleyne, 133 S. Ct. at 2155.
-5-
J-S70036-17
support, Troche cites Commonwealth v. Vasquez, 744 A.2d 1280 (Pa.
2000), for the proposition that “trial courts never relinquish jurisdiction to
correct an illegal sentence.” Troche’s Brief, at 17. Troche also seeks review
of his legality of sentence claim by this Court, relying upon Commonwealth
v. Orellana, 86 A.3d 877, 883 n.7 (Pa. Super. 2014) (“We recognize that this
Court is endowed with the ability to consider an issue of illegality of sentence
sua sponte.”). Vasquez and Orellana, however, involved direct appeals from
the judgment of sentence. Instantly, we are dealing with collateral review.
As we have already explained, “[a]lthough legality of sentence is always
subject to review within the PCRA, claims must still first satisfy the PCRA’s
time limits or one of the exceptions thereto.” Commonwealth v. Troche,
supra, 131 A.3d 100 (Pa. Super. 2015), citing Commonwealth v. Fahy, 737
A.2d 214, 223 (Pa. 1999). Accordingly, Troche’s second claim fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/17/2018
-6-
J-S70036-17
-7-