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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


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1   35 P.S. § 780-113(a)(16)

2   35 P.S. § 780-113(a)(30).
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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 Super. 2010) (unpublished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).




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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.




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       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).



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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.

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      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




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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


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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.




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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




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