J-A10007-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                        Appellee

                   v.

RICKY VILLANUEVA

                        Appellant              No. 1496 MDA 2014


              Appeal from the PCRA Order August 25, 2014
             In the Court of Common Pleas of Berks County
          Criminal Division at No(s): CP-06-CR-0005968-2002

COMMONWEALTH OF PENNSYLVANIA              IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                        Appellee

                   v.

RICKY VILLANUEVA

                        Appellant              No. 1497 MDA 2014


              Appeal from the PCRA Order August 25, 2014
             In the Court of Common Pleas of Berks County
          Criminal Division at No(s): CP-06-CR-0005969-2002

COMMONWEALTH OF PENNSYLVANIA              IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                        Appellee

                   v.

RICKY VILLANUEVA

                        Appellant              No. 1498 MDA 2014


              Appeal from the PCRA Order August 25, 2014
             In the Court of Common Pleas of Berks County
          Criminal Division at No(s): CP-06-CR-0006236-2002
J-A10007-15


BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                                FILED APRIL 22, 2015

       Appellant, Ricky Villanueva,1 appeals from the order entered in the

Berks County Court of Common Pleas, denying as untimely his second

petition filed under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

       On October 10, 2003, the court convicted Appellant of various drug

related offenses and sentenced him to an aggregate term of thirteen to sixty

years’ imprisonment.          On September 29, 2004, this Court affirmed

Appellant’s judgment of sentence.              See Commonwealth v. Villanueva,

863 A.2d 1233 (Pa.Super. 2004).                Appellant did not file a petition for

allowance of appeal with our Supreme Court. Appellant timely filed a pro se

PCRA petition on March 24, 2005, and the PCRA court appointed counsel.

On September 2, 2005, the PCRA court issued Rule 907 notice, to which

Appellant responded on September 28, 2005.                 The PCRA court denied

Appellant’s petition on October 11, 2005.             On June 2, 2006, this Court

affirmed the decision, see Commonwealth v. Villanueva, 903 A.2d 54

(Pa.Super. 2006), and our Supreme Court denied allowance of appeal nunc

pro tunc.

       Appellant filed the current PCRA petition pro se on July 1, 2014. The
____________________________________________


1
  The certified record indicates alternative spellings for Appellant’s name as
“Villanuea” and “Villaneuva.” We will use “Villanueva.”



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PCRA court issued Rule 907 notice on July 11, 2014, and Appellant

responded.    The PCRA court denied Appellant’s petition as untimely on

August 25, 2014.     On September 5, 2014, Appellant timely filed a pro se

notice of appeal.    The PCRA court ordered Appellant to file a concise

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

Appellant timely complied.

      The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008), cert.

denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d. 277 (2009). A PCRA

petition must be filed within one year of the date the underlying judgment

becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed final at

the conclusion of direct review or at the expiration of time for seeking

review. 42 Pa.C.S.A. § 9545(b)(3). The three statutory exceptions to the

timeliness provisions in the PCRA allow for very limited circumstances under

which the late filing of a petition will be excused.              42 Pa.C.S.A.

§9545(b)(1)(i)-(iii) (including (i) interference of government officials, (ii)

discovery of new facts, and (iii) recognition of new constitutional right, held

to apply retroactively).   A petitioner asserting a timeliness exception must

also file a petition within sixty days of the date the claim could first have

been presented.     42 Pa.C.S.A. § 9545(b)(2).       For purposes of the newly

recognized    constitutional    right    exception    contained    in   Section

9545(b)(1)(iii), “the sixty day period begins to run upon the date of the


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underlying judicial decision.”    See Commonwealth v. Brandon, 51 A.3d

231, 235 (Pa.Super. 2012).

      Instantly, Appellant’s judgment of sentence became final on October

29, 2004, upon the expiration of time to file a petition for allowance of

appeal with our Supreme Court.       See Pa.R.A.P. 1113.   Appellant filed the

current petition on July 1, 2014, more than nine years after his judgment of

sentence became final; thus, Appellant’s petition is patently untimely. See

42 Pa.C.S.A. § 9545(b)(1). Appellant alleges the untimeliness of his petition

is excused by the United States Supreme Court’s decision in Alleyne v.

United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013),

which held that any fact increasing the mandatory minimum sentence for a

crime is considered an element of the crime to be submitted to the fact-

finder and found beyond a reasonable doubt.           See 42 Pa.C.S.A. §

9545(b)(1)(iii).   Appellant contends he meets the newly recognized

constitutional right exception because he learned of the decision on May 30,

2014, and he filed the current petition within sixty days on July 1, 2014.

Nevertheless, Alleyne was decided on June 17, 2013; thus, Appellant had to

file the current petition by August 16, 2013, to meet the newly recognized

constitutional right exception.   See 42 Pa.C.S.A. § 9545(b)(2); Brandon,

supra.   Moreover, this Court held Alleyne is applicable only to criminal

cases still pending on direct review. See Commonwealth v. Newman, 99

A.3d 86 (Pa.Super. 2014) (en banc). Therefore, Appellant’s petition remains


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time-barred. Accordingly, we affirm the PCRA court’s decision.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/22/2015




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