J-S58037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

PETER MILANO

                          Appellant                 No. 2210 MDA 2015


              Appeal from the PCRA Order November 23, 2015
               In the Court of Common Pleas of Adams County
             Criminal Division at No(s): CP-01-CR-0000836-2005


BEFORE: GANTMAN, P.J., BOWES, J., and PLATT, J.*

JUDGMENT ORDER BY GANTMAN, P.J.:                  FILED AUGUST 09, 2016

        Appellant, Peter Milano, appeals pro se from the order entered in the

Adams County Court of Common Pleas, which denied his second petition

filed under the Post Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A. §§ 9541-

9546.     On June 2, 2006, a jury convicted Appellant of three counts of

delivery of a controlled substance.     On September 18, 2006, the court

sentenced Appellant to an aggregate term of 10-20 years’ incarceration,

which included imposition of mandatory minimum terms on each count

pursuant to 18 Pa.C.S.A. § 7508.       This Court affirmed the judgment of

sentence on February 11, 2008, and the Pennsylvania Supreme Court denied

allowance of appeal on September 18, 2008.         See Commonwealth v.

Milano, 951 A.2d 1214 (Pa.Super. 2008), appeal denied, 599 Pa. 690, 960

_____________________________

*Retired Senior Judge assigned to the Superior Court.
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A.2d 838 (2008).    Appellant filed his first PCRA petition on April 6, 2009,

which the PCRA court denied on September 4, 2009. This Court affirmed the

denial of PCRA relief.   See Commonwealth v. Milano, 998 A.2d 999

(Pa.Super. 2010). Appellant pro se filed the current second PCRA petition on

August 28, 2015. On September 14, 2015, the PCRA court issued notice of

intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907

and dismissed the petition on November 23, 2015. On December 17, 2015,

Appellant timely filed a pro se notice of appeal. The 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). 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

PCRA’s timeliness provisions allow for limited circumstances under which the

late filing of a petition will be excused. See 42 Pa.C.S.A. § 9545(b)(1). To

invoke the “new constitutional right” exception, the petitioner must plead

and prove 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


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held by that court to apply retroactively.” 42 Pa.C.S.A. § 9545(b)(1)(iii). A

petitioner asserting a timeliness exception must file a petition within 60 days

of the date the claim could have been presented.                 42 Pa.C.S.A. §

9545(b)(2).

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

17, 2008, upon expiration of the time to file a petition for writ of certiorari

with the U.S. Supreme Court.        See U.S.Sup.Ct.R. 13.      Appellant filed the

current PCRA petition on August 28, 2015.            Thus, Appellant’s petition is

patently   untimely.    See    42    Pa.C.S.A.   §     9545(b)(1).     See   also

Commonwealth v. Taylor, 65 A.3d 462 (Pa.Super. 2013) (stating:

“[A]lthough illegal sentencing issues cannot be waived, they still must be

presented in a timely PCRA petition”).      Appellant attempts to invoke the

“new constitutional right” exception to the PCRA time bar by citing the U.S.

Supreme Court’s decision in Alleyne v. U.S., ___ U.S. ___, 133 S.Ct. 2151,

186 L.Ed.2d 314 (2013), and the Pennsylvania Supreme Court’s decision in

Commonwealth v. Hopkins, ___ Pa. ___, 117 A.3d 247 (2015). Neither

the U.S. Supreme Court nor the Pennsylvania Supreme Court, however, has

held that Alleyne or its progeny apply retroactively. See Commonwealth

v. Miller, 102 A.3d 988 (Pa.Super. 2014) (holding that even if Alleyne

announced new constitutional right, neither our Supreme Court nor United

States Supreme Court has held that Alleyne applies retroactively, which is

fatal to appellant’s attempt to satisfy “new constitutional right” exception to


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timeliness requirements of PCRA). See also Commonwealth v. Ruiz, 131

A.3d 54 (Pa.Super. 2015) (explaining Alleyne does not invalidate illegal

mandatory minimum sentence when claim was presented in untimely PCRA

petition). See also Commonwealth v. Washington, ___ A.3d ___, 2016

WL 3909088 (Pa. filed July 19, 2016) (holding Alleyne does not apply

retroactively on collateral review to challenge to mandatory minimum

sentence as “illegal”). Therefore, Appellant’s petition remains time barred;

and the PCRA court lacked jurisdiction to review it.   See Hackett, supra.

Accordingly, we affirm.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/9/2016




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