J-S30032-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DONALD TROUTMAN, :
:
Appellant : No. 1669 WDA 2017
Appeal from the PCRA Order October 19, 2017
in the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0004416-2007
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DONALD TROUTMAN, :
:
Appellant : No. 1699 WDA 2017
Appeal from the PCRA Order November 6, 2017
in the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0004416-2007
BEFORE: BENDER, P.J.E., STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 07, 2018
Donald Troutman (Appellant) appeals at docket number 1669 WDA
2017, from the October 19, 2017 order denying his petition filed under the
Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.1 We affirm.
1At docket number 1699 WDA 2017, Appellant has appealed from an order
purportedly entered on November 6, 2017. This Court sua sponte
(Footnote Continued Next Page)
* Retired Senior Judge assigned to the Superior Court.
J-S30032-18
We provide the following background. In 2007, victim’s mother
reported to police that victim told her that her biological father, Appellant,
raped the victim several times in 2001. Appellant was charged with
numerous crimes related to these sexual assaults, and he proceeded to a
bench trial in 2009. On October 5, 2009, Appellant was found guilty of all
charges, and on March 22, 2010, Appellant was sentenced to an aggregate
term of seven and one half to fifteen years of incarceration. Appellant timely
filed an appeal to this Court, and on June 14, 2011, this Court affirmed
Appellant’s judgment of sentence. Commonwealth v. Troutman, 31 A.3d
744 (Pa. Super. 2011) (unpublished memorandum). Appellant did not file a
petition for allowance of appeal to our Supreme Court.
On January 21, 2016, Appellant pro se filed a PCRA petition. The
PCRA court appointed counsel on Appellant’s behalf. On December 22,
2016, counsel filed a petition to withdraw and no-merit letter pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). The PCRA court
granted counsel’s petition to withdraw and dismissed Appellant’s PCRA
petition. Appellant did not file a notice of appeal from that order.
(Footnote Continued) _______________________
consolidated the appeals. The certified record does not contain any order
entered on that day, and Appellant does not offer any explanation about
what that order entailed. Accordingly, we dismiss the appeal docketed at
1699 WDA 2017.
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On August 3, 2017, Appellant filed a motion entitled “Motion to Modify
Sentence.” In that motion, Appellant asserted that he is serving an illegal
sentence pursuant to our Supreme Court’s decision in Commonwealth v.
Muniz, 164 A.3d 1189 (Pa. 2017) (holding that certain registration
provisions of Pennsylvania’s Sex Offender Registration and Notification Act
(SORNA) are punitive and retroactive application of those provisions violates
the federal ex post facto clause, as well as the ex post facto clause of the
Pennsylvania constitution). The PCRA court treated this motion as a PCRA
petition, and on October 19, 2017, issued an order dismissing the petition.
Appellant timely filed a notice of appeal. Both Appellant and the PCRA court
have complied with Pa.R.A.P. 1925.2
On appeal, Appellant contends that the PCRA court erred in dismissing
his petition. In considering this issue, we must first consider whether
Appellant has timely filed his petition, as neither this Court nor the PCRA
court has jurisdiction to address the merits of an untimely-filed petition.
Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa. Super. 2011).
Any PCRA petition, including second and subsequent petitions, must
either (1) be filed within one year of the judgment of sentence becoming
final, or (2) plead and prove a timeliness exception. 42 Pa.C.S. § 9545(b).
2 On January 24, 2018, the PCRA court issued an opinion stating that it “has
conducted an additional review of the PCRA petition and would request that
in light of” Muniz, supra, this Court remand the case for further
consideration. PCRA Court Opinion, 1/24/2018. For the reasons that follow,
we decline to do so.
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Furthermore, the petition “shall be filed within 60 days of the date the claim
could have been presented.” 42 Pa.C.S. § 9545(b)(2).
“For purposes of [the PCRA], a judgment [of sentence] becomes 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 the review.” 42 Pa.C.S.
§ 9545(b)(3). Here, this Court affirmed Appellant’s judgment of sentence on
June 14, 2011, and he did not file a petition for allowance of appeal to our
Supreme Court. Thus, his judgment of sentence became final 30 days later,
or on July 14, 2011, and he had one year, or until July 13, 2012, to file
timely a PCRA petition. Thus, Appellant’s August 3, 2017 petition is facially
untimely, and he was required to plead and prove an exception to the
timeliness requirements.
Although Appellant has not cited to 42 Pa.C.S. § 9545 in his PCRA
petition, it is apparent that he is attempting to plead the exception set forth
in section 9545(b)(1)(iii) (“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 … 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.”). Here, Appellant relies on our
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Supreme Court’s holding in Muniz in support of his petition. See Motion to
Modify Sentence, 8/3/2017, at ¶ 1.
This Court considered whether Muniz applies under similar
circumstances in Commonwealth v. Murphy, 180 A.3d 402 (Pa. Super.
2018). In that case, Murphy was convicted of a number of sex-related
crimes in 2007, and after review, his judgment of sentence became final on
July 28, 2009. On October 18, 2017, while a serial PCRA petition was
pending in this Court, Murphy filed a motion asserting that Muniz renders
portions of his sentence unconstitutional. This Court considered that
argument and offered the following.
Here, we acknowledge that this Court has declared that,
“Muniz created a substantive rule that retroactively applies in
the collateral context.” Commonwealth v. Rivera–Figueroa,
174 A.3d 674, 678 (Pa. Super. 2017). However, because
[Murphy’s] PCRA petition is untimely (unlike the petition at issue
in Rivera–Figueroa), he must demonstrate that the
Pennsylvania Supreme Court has held that Muniz applies
retroactively in order to satisfy section 9545(b)(1)(iii). Because
at this time, no such holding has been issued by our Supreme
Court, [Murphy] cannot rely on Muniz to meet that timeliness
exception.
Murphy, 180 A.3d at 405–06 (emphasis in original; some citations omitted).
In other words, this Court concluded that the holding in Muniz does
not apply at this point to untimely-filed PCRA petitions. This Court
acknowledges that “if the Pennsylvania Supreme Court issues a decision
holding that Muniz applies retroactively, Murphy can then file a PCRA
petition, within 60 days of that decision, attempting to invoke the ‘new
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retroactive right’ exception in section 9545(b)(1)(iii).” Murphy, 180 A.3d at
406 n.1. The same holds true for Appellant.
Based on the foregoing, we conclude that Appellant’s petition was
untimely filed, and he has not asserted an exception to the timeliness
requirements. Thus, he is not entitled to relief.3
Order on appeal at docket number 1669 WDA 2017 affirmed. Appeal at
docket number 1699 WDA 2017 dismissed. Jurisdiction relinquished.
Judge Stabile joins the memorandum.
PJE Bender files a dissenting memorandum
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/7/2018
3 The Commonwealth suggests that not only does this Court not have
jurisdiction to address the merits of this untimely-filed PCRA petition, as
discussed supra, but also contends that the petition is moot pursuant to
newly-enacted legislation. See Commonwealth’s Brief at 19-21. However,
because we conclude we do not have jurisdiction, we decline to reach the
issue of mootness.
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