J-S56010-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

MICHAEL W. TROLLINGER,

                            Appellant                No. 574 MDA 2015


                 Appeal from the Order Entered March 9, 2015
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0000231-2012


BEFORE: SHOGAN, JENKINS, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED OCTOBER 27, 2015

       Appellant, Michael W. Trollinger, appeals from the order denying his

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546. We affirm.

       Appellant pled guilty pursuant to a negotiated agreement on February

5, 2013, to seven counts of possession of a controlled substance with intent

to deliver (“PWID”) and one count of possession of a prohibited firearm. The

Commonwealth summarized the factual basis of the plea as follows:

       [O]n December 9th, 2010, the defendant delivered $300 [worth]
       of cocaine to a confidential informant near Penn and Wiconisco
       Streets in the City of Harrisburg. The crack cocaine weighed
       over two grams. I believe it was 2.2 grams.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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           Count 2 alleged that on January 5th, 2011, the defendant
     delivered $400 worth of cocaine to a confidential informant near
     Green and Radnor Streets in the City of Harrisburg. The cocaine
     weighed 3.5 grams.

           At Count 3, on August 18th, 2011, the defendant delivered
     $400 worth of marijuana, namely 4.3 grams, to a confidential
     informant at Penn Street and Wiconisco Street in the City of
     Harrisburg.

           At Count 4, on September 27th, 2011, the defendant
     delivered $300 worth of cocaine, which was three grams, to a
     confidential informant near Green and Schuylkill Streets in the
     City of Harrisburg.

           Count 5, between the dates of December 9, 2010, and
     September 29th, 2011, the defendant utilized a cell phone to
     commit the crime of the unlawful delivery of a controlled
     substance. In other words, the cell phone was utilized to set up
     the drug deals.

            At Count 6, on September 29, 2011, the defendant was
     found in possession of a substantial amount of marijuana. I
     believe there was over a 100 grams of marijuana as well as
     plants. That marijuana was possessed with the intent to deliver
     it to another person.

           At Count 7, the defendant was also in possession of
     cocaine. I believe it was over 100 grams of cocaine that was in
     his possession. I believe it was in his house. What happened,
     on September 29th, there was a search warrant executed on his
     home and a substantial amount of weed as well as cocaine as
     well as scales and baggies were found in addition to $25,000.

          Count 8. Count 8 is withdrawn.

          Count 9. When they executed the search warrant on
     September 29th, 2011 --

           Just to be clear, Count 9 was amended on the criminal
     information.




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           -- the defendant was in possession in his home of three
      handguns; a Taurus .40 caliber handgun, a Mossberg 12 gauge
      shotgun, an Intratec .22 caliber handgun.

N.T. (Guilty Plea), 2/5/13, at 4–5.

      On April 1, 2013, the trial court sentenced Appellant in accordance

with the plea agreement to an aggregate term of imprisonment of eight to

sixteen years. The sentence imposed was as follows:

            AND NOW, this 1st day of April 2013, at Count 1, we
      sentence the defendant to 3 to 6 years in state prison, a fine of
      $50, plus costs; Count 2, we sentence the defendant to 3 to 6
      years, a fine of $50, plus costs; at Count 3 we sentence the
      defendant to 3 to 6 years, a fine of $50, plus costs; at Count 4
      we sentence the defendant to 3 to 6 years, a fine of $50, plus
      costs; at Count 5 we sentence the defendant 1 to 2 years, a fine
      of $25, plus costs; at Count 6 we sentence the defendant to 5 to
      10 years, a fine of $50, plus costs; at Count 7 we sentence the
      defendant to 8 to 16 years, a fine of $50, plus costs; and at
      Count 9, we sentence the defendant to 5 to 10 years.

           All sentences will run concurrently to one another, so the
      defendant has an aggregate sentence of 8 to 16 years.

Order, 4/1/13, at 1.   Appellant did not file a post-sentence motion or an

appeal from the judgment of sentence.

      On September 18, 2014, Appellant filed a pro se PCRA petition.      On

September 24, 2014, the PCRA court appointed counsel, who filed a

supplemental petition on December 1, 2014.      On February 12, 2015, the

PCRA court issued notice of its intent to dismiss Appellant’s petition.   The

PCRA court dismissed the petition on March 10, 2015, and Appellant filed

this timely appeal on March 30, 2015. Both Appellant and the PCRA court

complied with Pa.R.A.P. 1925.

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       Appellant raises the following single issue on appeal:

       I. WHETHER THE SENTENCE THE APPELLANT RECEIVED WAS
       ILLEGAL?

Appellant’s Brief at 5. Appellant asserts that his sentence was illegal based

upon Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013), and

Commonwealth v. Newman, 99 A.2d 86 (Pa. Super. 2014) (en banc).1

Appellant asserted to the PCRA court and maintains here that his mandatory

minimum sentence pursuant to 42 Pa.C.S. § 9712.12 is illegal because

section 9712.1 is unconstitutional.

       When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”     Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014) (en banc)). This Court is limited to determining whether the evidence

of record supports the conclusions of the PCRA court and whether the ruling

is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that
____________________________________________


1
  Appellant’s additional reliance on Commonwealth v. Hughes, 2478 EDA
2013, ___ A.3d ___ (Pa. Super. filed March 18, 2015), Commonwealth v.
Valentine, 101 A.3d 801 (Pa. Super. 2014), and Commonwealth v.
Ferguson, 107 A.3d 206 (Pa. Super. 2015), is misplaced as these cases are
appeals from the judgment of sentence and do not involve the jurisdictional
considerations of the PCRA.
2
   That section provided for mandatory minimum sentences for certain drug
offenses committed with firearms.



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are supported in the record and will not disturb them unless they have no

support in the certified record.   Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa. Super. 2014).      “There is no absolute right to an evidentiary

hearing on a PCRA petition, and if the PCRA court can determine from the

record that no genuine issues of material fact exist, then a hearing is not

necessary.”   Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.

2008) (quoting Commonwealth v. Barbosa, 819 A.2d 81 (Pa. Super.

2003)).

      Appellant’s issue is not waived because challenges to the legality of a

sentence cannot be waived. Commonwealth v. Miller, 102 A.3d 988, 996

(Pa. Super. 2014) (Alleyne challenge to legality of sentence is “not

technically waivable”).   However, the issue is untimely because Appellant

raised it for the first time more than one year after his judgment of sentence

became final, and he has not asserted and proved one of the PCRA’s

enumerated exceptions.     As a result, we lack jurisdiction to review it.   42

Pa.C.S. § 9545(b).

      A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time

requirement is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of the petition.   Commonwealth v.

Murray, 753 A.2d 201, 203 (Pa. 2000). A judgment of sentence “becomes

final at the conclusion of direct review, including discretionary review in the


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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).

        Our review of the record reflects that Appellant’s judgment of sentence

became final on May 1, 2013, thirty days after the trial court imposed the

judgment of sentence, and Appellant failed to file a direct appeal with this

Court.    42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a).      Thus, a timely PCRA

petition had to have been filed by May 1, 2014. Appellant did not file the

instant PCRA petition until September 18, 2014.         Thus, Appellant’s PCRA

petition underlying the instant appeal is patently untimely.

        The PCRA court dismissed the petition as untimely. Nevertheless, an

untimely petition may be received when the petition alleges, and the

petitioner proves, that any of the three limited exceptions to the time for

filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii), is

met.3    A petition invoking one of these exceptions must be filed within sixty

____________________________________________


3
    The exceptions to the timeliness requirement are:

        (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

(Footnote Continued Next Page)


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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).        Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa.

Super. 2001).

      Initially, in his brief, Appellant fails to assert the applicability of any of

the section 9545(b)(2) exceptions.               Instead, he merely argues that his

sentence was illegal. Appellant did, however, invoke the second and third

exceptions in his amended PCRA petition. Amended PCRA Petition, 12/1/14,

at ¶ 9.   The new “facts” upon which Appellant relied are three newspaper

articles discussing the impact of Alleyne on other defendants’ sentences.4

This exception rightly was ignored by the PCRA court, which focused upon




                       _______________________
(Footnote Continued)

      (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.

42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).
4
  Only one article bears the date of publication, which was March 5, 2014.
Appellant’s pro se PCRA petition was not filed within sixty days of the date
on which the article was published. Appellant’s amended PCRA petition
abandons reference to the newspaper articles.



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the    third   exception    of   section       9545(b)(1),   the   “newly   recognized

constitutional right” exception.5

       Appellant focused on the filing of Alleyne and Newman in this

amended PCRA petition, averring that these holdings rendered his sentence

illegal.   Alleyne was decided on June 17, 2013.             Appellant filed his PCRA

petition on September 18, 2014, well over sixty days after the date the

claim could have been presented. See Commonwealth v. Boyd, 923 A.2d

513, 517 (Pa. Super. 2007) (stating that “[w]ith regard to [a newly]

recognized constitutional right, this Court has held that the sixty-day period

begins to run upon the date of the underlying judicial decision.”).

       Furthermore, this Court has held that even if Alleyne is interpreted as

enunciating a newly recognized constitutional right, such right is not

applicable retroactively to cases on PCRA review. See Miller, 102 A.3d at

995.

       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 [the a]ppellant’s argument
       regarding the PCRA time-bar. This Court has recognized that a
____________________________________________


5
   “Our Courts have expressly rejected the notion that judicial decisions can
be considered newly-discovered facts which would invoke the protections
afforded by section 9545(b)(1)(ii).” Commonwealth v. Cintora, 69 A.3d
759, 763 (Pa. Super. 2013); Commonwealth v. Watts, 23 A.3d 980, 987
(Pa. 2011) (judicial decision does not qualify as an exception under section
9545(b)(1)(ii)). Alleyne, a judicial decision, is not a “fact” that satisfies 42
Pa.C.S. § 9545(b)(1)(ii).



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     new rule of constitutional law is applied retroactively to cases on
     collateral review only if the United States Supreme Court or our
     Supreme Court specifically holds it to be retroactively applicable
     to those cases. Commonwealth v. Phillips, 31 A.3d 317, 320
     (Pa. Super. 2011), appeal denied, 615 Pa. 784, 42 A.3d 1059
     (2012), citing Tyler v. Cain, 533 U.S. 656, 663, 121 S.Ct. 2478,
     150 L.Ed.2d 632 (2001); see also, e.g., Commonwealth v.
     Taylor, 933 A.2d 1035, 1042 (Pa. Super. 2007) (stating, “for
     purposes of subsection (iii), the language ‘has been held by that
     court to apply retroactively’ means the court announcing the rule
     must have also ruled on the retroactivity of the new
     constitutional right, before the petitioner can assert retroactive
     application of the right in a PCRA petition”), appeal denied, 597
     Pa. 715, 951 A.2d 1163 (2008). Therefore, [the a]ppellant has
     failed to satisfy the new constitutional right exception to the
     time-bar.

           We are aware that an issue pertaining to Alleyne goes to
     the legality of the sentence. See Commonwealth v. Newman,
     99 A.3d 86, 90 (Pa. Super. 2014) (en banc) (stating, “a
     challenge to a sentence premised upon Alleyne likewise
     implicates the legality of the sentence and cannot be waived on
     appeal”). It is generally true that “this Court is endowed with
     the ability to consider an issue of illegality of sentence sua
     sponte.” Commonwealth v. Orellana, 86 A.3d 877, 883 n.7
     (Pa. Super. 2014) (citation omitted). However, in order for this
     Court to review a legality of sentence claim, there must be a
     basis for our jurisdiction to engage in such review.          See
     Commonwealth v. Borovichka, 18 A.3d 1242, 1254 (Pa.
     Super. 2011) (stating, “a challenge to the legality of a
     sentence ... may be entertained as long as the reviewing court
     has jurisdiction”) (citation omitted).    As this Court recently
     noted, “[t]hough not technically waivable, a legality of sentence
     claim may nevertheless be lost should it be raised ... in an
     untimely PCRA petition for which no time-bar exception applies,
     thus depriving the court of jurisdiction over the claim.”
     [Commonwealth v.] Seskey, [86 A.3d 237, 242 (Pa. Super.
     2014).     As a result, the PCRA court lacked jurisdiction to
     consider the merits of [the a]ppellant’s second PCRA petition, as
     it was untimely filed and no exception was proven.

Miller, 102 A.3d 995–996 (Pa. Super. 2014).         Cf. Commonwealth v.

Riggle, 119 A.3d 1058 (Pa. Super. 2015) (In a timely PCRA petition,

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Alleyne not applicable retroactively on PCRA review). Miller applies to the

instant case. See also Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa.

Super. 2013) (“[A]lthough illegal sentencing issues cannot be waived, they

still must be presented in a timely PCRA petition.”). Accordingly, the PCRA

court properly dismissed Appellant’s PCRA petition as untimely.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/27/2015




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