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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                      :
                                            :
ALBERT TROCHE, JR.,                         :
                                            :
                          Appellant         :     No. 362 MDA 2015

                 Appeal from the PCRA Order February 5, 2015
                 In the Court of Common Pleas of Berks County
               Criminal Division No(s).: CP-06-CR-0002322-2007
                                         CP-06-CR-0002688-2007

BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                       FILED AUGUST 21, 2015

        Appellant, Albert Troche, Jr., appeals pro se from the order entered in

the Berks County Court of Common Pleas dismissing his second petition for

relief filed pursuant to the Post Conviction Relief Act 1 (“PCRA”) as untimely.2

We affirm.



*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
  We note this is the third PCRA petition Appellant filed after his conviction.
However, because his previous petition was summarily dismissed because
his first petition was pending, we will address it as a second PCRA petition.
See Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (holding
subsequent PCRA petition cannot be filed until resolution of review of
pending PCRA petition by highest state court in which review is sought, or
upon expiration of time for seeking such review).
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        We adopt this Court’s recitation of facts from Appellant’s direct appeal.

See Commonwealth v. Troche, 1512 & 1513 MDA 2009 (unpublished

memorandum at 1-2) (Pa. Super. filed Sept. 14, 2010).            On August 19,

2009, a jury found Appellant guilty of one count of delivery of a controlled

substance,3 one count of possession with intent to deliver cocaine4 and two

counts of possession with intent to deliver marijuana. 5 On the same day, he

was sentenced to an aggregate twelve years and one month to fifty years’

incarceration in a state correctional facility. Appellant appealed, challenging

the discretionary aspects of his sentence, and on September 14, 2010, this

Court affirmed his convictions.      Troche, 1512 & 1513 MDA 2009, at 6.

Appellant did not seek allowance of appeal in the Pennsylvania Supreme

Court.

        Appellant timely filed his first pro se PCRA petition on January 24,

2011.     On January 28th, the PCRA court appointed counsel, who filed a

Turner/Finley6 no merit letter and petition for leave of court to withdraw as

counsel on March 12, 2013. The court issued a Pa.R.Crim.P. 907 notice and

granted counsel leave to withdraw on May 23, 2013. On June 27, 2013, the

3
    35 P.S. § 780-113(a)(16).
4
    35 P.S. § 780-113(a)(30).
5
    35 P.S. § 780-113(a)(30).
6
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988)(en banc).




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court denied Appellant’s first petition. This Court affirmed the denial of relief

on March 5, 2014. Appellant filed a petition for allowance of appeal with the

Pennsylvania Supreme Court, which was denied on October 7, 2014.7

Commonwealth v. Troche, 1210 & 1211 MDA 2015 (unpublished

memorandum) (Pa. Super.), appeal denied, 381 & 382 MAL 2014 (Pa. Oct.

7, 2014).

        On October 23, 2014, the PCRA court received Appellant’s second pro

se PCRA petition, which gives rise to this appeal.8 On January 22, 2015, the

PCRA court issued a Pa.R.Crim.P. 907 notice to dismiss the petition without a

hearing.    Appellant responded to this notice on January 29, 2015.9         The

following day, the PCRA court formally dismissed his second PCRA petition as

untimely.10




7
  As noted above, Appellant attempted to file an additional PCRA petition
while the appeal from his first PCRA petition was still pending, which the
PCRA court properly dismissed as premature. See Lark, 746 A.2d at 588.
8
  We acknowledge the prisoner mailbox rule applies. See Commonwealth
v. Little, 716 A.2d 1287, 1288 (Pa. Super. 1998). We cannot determine
from the certified record when Appellant deposited the instant petition with
prison officials, but note he dated the certificate of service October 21, 2014.
9
    Appellant’s response included an envelope postmarked January 29, 2015.
10
  The PCRA court formally dismissed Appellant’s second PCRA petition after
Appellant replied to the Pa.R.Crim.P. 907 notice. This dismissal was before
the twenty day response time lapsed; Appellant does not challenge this
procedure as improper. See Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa.
Super. 2014) (holding defects in 907 waivable).



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      Appellant timely filed a notice of appeal on February 24, 2015.

Appellant was ordered to file a Pa.R.A.P. 1925(b) statement and he timely

complied. On March 12, 2015, the PCRA court filed a Rule 1925(a) opinion,

adopting its previous order and notice of intent to dismiss.

      Appellant raises the following issues for our review:

         1. Whether the guideline sentence form prepared by the
         Commonwealth was incorrect in its calculation of prior
         record score under 204 Pa.Code § 303.7(f)?

         2. Whether the sentence imposed was a manifest abuse of
         discretion?

         3. Whether the Trial Court was [statutorily] barred from
         imposing its sentence?

         4. Whether the Trial Court erred by double counting
         [Appellant’s] sentence and improperly omitted its reason
         or reasons for the sentence imposed on the guideline
         form?

         5. Did counsel cause irreparable harm in the matters of the
         this case, denying [A]ppellant the assistance of competent
         counsel for failure to raise substantial questions for
         review?

Appellant’s Brief at 4.11

      As suggested      by   his   questions   presented, Appellant principally

challenges the propriety of his sentence.       Specifically, Appellant contends

the trial court imposed an illegal sentence under Apprendi v. New Jersey,

530 U.S. 466 (2000), and Alleyne v. United States, 133 S. Ct. 2151


11
 Appellant has also filed a motion for extension of time to file a reply brief.
We grant the motion and accept his reply brief.



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(2013), because the court was not statutorily authorized to impose his

sentence without first submitting it to the jury. Id. at 13. He asserts his

sentence is illegal because “[t]he sentence guideline prepared by the

Commonwealth is in error[,] [t]he [t]rial [c]ourt[’s] sentence is a manifest

abuse of discretion[,] [t]he [t]rial [c]ourt double counted [A]ppellant[’s]

prior record score and improperly omitted its reason for the sentence

imposed. Id. at 7. Furthermore, he states “[h]e was denied the assistance

of competent counsel guaranteed by the United States and Pennsylvania

Constitution” because prior counsel failed to raise meritorious sentencing

claims. Id. at 18. As to the timeliness of the underlying petition, he avers

the legality of his sentence can never be waived or subject to PCRA time

limits. Id. at 7.

         Our standard of review of an order denying PCRA relief is
         whether     the    record    supports   the   PCRA    court’s
         determination,      and     whether   the     PCRA    court’s
         determination 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. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013)

(citations omitted).

      We must first consider whether the PCRA court had jurisdiction to

entertain the underlying PCRA petition.

            [W]e observe that the timeliness of a PCRA petition is a
         jurisdictional requisite. “Jurisdictional time limits go to
         court’s right or competency to adjudicate a controversy.”
         Pennsylvania law makes clear no court has jurisdiction to
         hear an untimely PCRA petition. The PCRA now requires a


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       petition, including second or subsequent petition, to be
       filed within one year of the date the underlying judgment
       becomes final. 42 Pa.C.S.A. § 9545(b)(1)[.] A judgment
       is deemed 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 review.” 42 Pa.C.S.A.
       § 9545(b)(3).

           Generally, to obtain merits review of a PCRA petition
       filed more than one year after a petitioner’s sentence
       became final, the petitioner must allege and prove at least
       one of the three timeliness exceptions. See 42 Pa.C.S.A.
       § 9545(b)(1)(i)-(iii). To invoke an exception, a petition
       must allege and the petitioner must prove:

          (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
          of 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 section and has been held by that
          court to apply retroactively.

       42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).       “[W]hen a PCRA
       petition is not filed within one year of the expiration of
       direct review, or not eligible for one of the three limited
       exceptions, or entitled to one of the exceptions, but not
       filed within 60 days of the date that the claim could have
       been first brought, the trial court has no power to address
       the substantive merits of the petitioner’s PCRA claims.”

          The timeliness exception set forth in Section
       9545(b)(1)(ii) requires a petitioner to demonstrate he did
       not know the facts upon which he based his petition and
       could not have learned those facts earlier by the exercise


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         of due diligence.       Due diligence demands that the
         petitioner take reasonable steps to protect his own
         interests. A petitioner must explain why he could not have
         learned the new fact(s) earlier with the exercise of due
         diligence. This rule is strictly enforced.

            The statutory exceptions to the timeliness requirements
         of the PCRA are also subject to a separate time limitation
         and must be filed within sixty (60) days of the time the
         claim could have been first presented. See 42 Pa.C.S.A. §
         9545(b)(2).     The sixty (60) day time limit related to
         Section 9545(b)(2) runs from the date the petitioner first
         learned of the alleged after-discovered facts. A petitioner
         must explain when he first learned of the facts underlying
         his PCRA claims and show that he brought his claim within
         sixty (60) days thereafter. “A petitioner fails to satisfy the
         60-day requirement of Section 9545(b) if he . . . fails to
         explain why, with the exercise of due diligence, the claim
         could not have been filed earlier.” All of the time limits
         set forth in the PCRA are jurisdictional and must be strictly
         construed.

Commonwealth v. Williams, 35 A.3d 44, 52-53 (Pa. Super. 2011) (some

citations omitted).

      In the instant case, Appellant was sentenced on August 19, 2009.

This Court affirmed the judgment of sentence on September 14, 2010.

Appellant had thirty days from that date, or until October 14, 2010, to

petition the Pennsylvania Supreme Court for allowance of appeal but did not

pursue his direct appeal in the Supreme Court.        See Pa.R.A.P. 1113(a).

Therefore, Appellant’s judgment of sentence became final on that date, and

he had one year therefrom, or until October 14, 2011, to file a facially timely

PCRA petition. See 42 Pa.C.S. § 9545(b)(3). As stated above, the instant

PCRA petition was filed on October 23, 2014, and therefore was untimely on



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its face.   Thus, Appellant bore the burden of pleading and proving a

timeliness exception to the PCRA time bar. See 42 Pa.C.S. § 9545(b).

      Appellant contends his legality of sentence claims are “nonwaivable.”

However, our Supreme Court held in Commonwealth v. Fahy, 737 A.2d

214, 223 (Pa. 1999), that “[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.”     Therefore, Appellant’s assertion

fails to establish a timeliness exception.

      Instantly, Appellant does not expressly assert a time-bar exception

under 42 Pa.C.S. § 9545(b)(1)(i), (ii), or (iii). To the extent Appellant refers

to Alleyne,12 this Court has held Alleyne does not provide an exception to

the PCRA time bar. See Commonwealth v. Miller, 102 A.3d 988, 994 (Pa.

Super. 2014).13 Specifically, the Miller court opined:

            Subsection (iii) of Section 9545[(b)(1)] has two
            requirements.     First, it provides that 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
            provided in this section. Second, it provides that the
            right “has been held” by “that court” to apply
            retroactively. The language “has been held” is in the
            present tense. These words mean that the action
            has already occurred, i.e., “that court” has already

12
   Although Appellant cites to Alleyne, he did not frame Alleyne as an
exception to the PCRA timeliness requirements in his brief.
13
   See also Commonwealth v. Riggle, 1112 MDA 2014, 2015 WL
4094427, at *3-6 (Pa. Super. Jul. 7, 2015).




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            held the new constitutional right to be retroactive to
            cases on collateral review. By employing the past
            tense in writing this provision, the legislature clearly
            intended that the right was already recognized at the
            time the petition was filed.

                                 *    *    *

         Even assuming that Alleyne did announce 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. This is fatal to [an] argument
         regarding the PCRA time-bar.

Id.

      Thus, Appellant fails to establish any of the three timeliness exceptions

pursuant to 42 Pa.C.S. § 9545(b)(1)(i)-(iii).      Because Appellant has not

established jurisdiction under the PCRA, we may not consider the merits of

his remaining claims. As we discern no abuse of discretion or error of law by

the PCRA court, we affirm.

      Order affirmed. Appellant’s motion for extension of time to file a reply

a brief granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/21/2015




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