J-S53012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

GEORGE TRUDEL, JR.,

                        Appellant                  No. 3154 EDA 2016


          Appeal from the PCRA Order Entered September 20, 2016
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0822991-1987


BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                 FILED SEPTEMBER 20, 2017

      Appellant, George Trudel, Jr., appeals pro se from the September 20,

2016 order dismissing, as untimely, his second petition filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      We need not set forth the factual and procedural history of Appellant’s

case in great detail. We only note that in 1988, Appellant was convicted by

a jury of second-degree murder, conspiracy, and possessing an instrument

of crime. He was sentenced to life imprisonment without the possibility of

parole.   After this Court affirmed his judgment of sentence, our Supreme

Court denied Appellant’s subsequent petition for allowance of appeal.

Commonwealth v. Trudel, 573 A.2d 624 (Pa. Super. 1990) (unpublished

memorandum), appeal denied, 589 A.2d 690 (Pa. 1990).
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     Appellant thereafter filed the present, pro se PCRA petition - his

second - on May 1, 2012. He also filed several amended and supplemental

petitions over the ensuing years. On August 2, 2016, the PCRA court issued

a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition.

Appellant filed a timely, pro se response, but on September 20, 2016, the

PCRA court issued an order denying his petition.   Appellant filed a timely,

pro se notice of appeal. While the PCRA court did not direct him to file a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, the

court filed a Rule 1925(a) opinion on January 17, 2017.

     Herein, Appellant presents three issues for our review:

     A. Does not the decision of the Pennsylvania Supreme Court in
     Commonwealth v. Vasquez, 744 A.2d 1284 (Pa. 2000), which
     held that non-compliance with Pa.R.Crim. Proc., 42 Pa.C.S.[] §
     1410 and, 42 Pa.C.S.[] § 5505 creates no bar to reviewing the
     application by the trial court of 42 Pa.C.S. § 9714?

     …

     B. Does not the recent decision of the United States Supreme
     Court in Alleyne v. United States, 133 S.Ct. 2151 (2013), and
     its progeny, Commonwealth v. Newman, 99 A.3d 86 ([Pa.
     Super.] 2014) [(en banc)], … Commonwealth v. Wat[ley,]81
     A.3d 108 … (Pa. Super. 2013), Commonwealth v. Valentine[,
     101 A.3d 801 (Pa. Super. 2014),] ... and Commonwealth v.
     Wolfe, 121 A.3d 433 (Pa. 201[5]), constitute illegal sentencing
     claims that any fact that, by law, increases the penalty for a
     crime is an “element” that must be submitted to the jury and
     found beyond a reasonable doubt?

     …

     C. Does not the PCRA [c]ourt’s [a]nswer fail to address
     [Appellant’s] illegal sentencing claims that non-compliance with
     Pa.R.Crim. Proc’s [sic] create[s] no bar to reviewing the
     application by the trial court in any meaningful way, for it also

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      fails to even mention the applicability of 42 Pa.C.S. § 9542
      action established in 42 Pa.C.S. pt. VIII, ch. 95, subch. B shall
      be the sole means of obtaining collateral relief and encompasses
      all other common law and statutory remedies for the same
      purpose that exist when subch. B takes effect, before denying
      the PCRA motion as without merit and untimely filed?

Appellant’s Brief at 2-3.

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.      Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant’s petition, because the PCRA time limitations

implicate our jurisdiction and may not be altered or disregarded in order to

address the merits of a petition.    Commonwealth v. Bennett, 930 A.2d

1264, 1267 (Pa. 2007) (stating PCRA time limitations implicate our

jurisdiction and may not be altered or disregarded to address the merits of

the petition).   Under the PCRA, any petition for post-conviction relief,

including a second or subsequent one, must be filed within one year of the

date the judgment of sentence becomes final, unless one of the following

exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (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:

            (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


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            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

            (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)-(iii).   Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

      Here, our Supreme Court denied Appellant’s petition for allowance of

appeal on October 23, 1990; thus, his judgment of sentence became final 90

days thereafter, or on January 21, 1991.       See 42 Pa.C.S. § 9545(b)(3)

(stating that a judgment of sentence becomes final at the conclusion of

direct review or the expiration of the time for seeking the review);

Commonwealth v. Owens, 718 A.2d 330, 331 (Pa. Super. 1998) (directing

that under the PCRA, petitioner’s judgment of sentence becomes final ninety

days after our Supreme Court rejects his or her petition for allowance of

appeal since petitioner had ninety additional days to seek review with the

United States Supreme Court).       Consequently, Appellant’s current PCRA

petition, filed in May of 2012, is patently untimely, and for this Court to have

jurisdiction to review the merits of his claims, he must plead and prove the

applicability of one of the above-stated timeliness exceptions.




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      Appellant has failed to meet this burden.    He seemingly attempts to

satisfy the ‘new constitutional right’ exception of section 9545(b)(1)(iii) by

relying on the rule announced in Alleyne, and on subsequent decisions by

our Supreme Court and this Court that invalidated certain mandatory

minimum sentencing statutes in the wake of Alleyne. See Appellant’s Brief

at 6-10; see also Alleyne, 133 S.Ct. at 2163 (holding that “facts that

increase mandatory minimum sentences must be submitted to the jury” and

found beyond a reasonable doubt). However, Appellant acknowledges that

our Supreme Court has held that Alleyne does not apply retroactively to

cases pending on collateral review.       See Appellant’s Brief at 10, 14

(recognizing that in Commonwealth v. Washington, 142 A.3d 810 (Pa.

2016), our Supreme Court held that Alleyne does not apply retroactively to

collateral attacks on mandatory minimum sentences).

      Notwithstanding the holding in Washington, Appellant devotes a

significant portion of his argument to contending that Alleyne constitutes a

‘watershed rule of criminal procedure’ that requires retroactive application.

See Appellant’s Brief at 10-14.     Unfortunately for Appellant, even if we

agreed with this argument, we are bound to follow Washington, which

conclusively decided that Alleyne does not apply retroactively to cases on

collateral review. Therefore, Appellant cannot rely on Alleyne to satisfy the

exception of section 9545(b)(1)(iii).     Additionally, while Appellant cites

various decisions by our Supreme Court and this Court that were issued in

the wake of Alleyne, none of those decisions created a ‘new rule’; instead,

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they merely applied the rule announced in Alleyne to find certain,

mandatory minimum sentencing statutes unconstitutional.

          For these reasons, Appellant has failed to prove that the timeliness

exception of section 9545(b)(1)(iii) applies to his case.     Thus, the PCRA

court did not err in dismissing his untimely-filed petition for post-conviction

relief.

          Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/20/2017




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