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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
J-S56010-15
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.
-2-
J-S56010-15
-- 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.
-3-
J-S56010-15
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.
-4-
J-S56010-15
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
-5-
J-S56010-15
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)
-6-
J-S56010-15
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.
-7-
J-S56010-15
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).
-8-
J-S56010-15
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,
-9-
J-S56010-15
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
- 10 -