J-S86041-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

STEVEN A. LUKOWICH

                        Appellant                   No. 919 WDA 2016


                  Appeal from the PCRA Order June 8, 2016
                In the Court of Common Pleas of Erie County
            Criminal Division at No(s): CP-25-CR-0001252-2002


BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS, P.J.E.*

JUDGMENT ORDER BY GANTMAN, P.J.:               FILED DECEMBER 08, 2016

     Appellant, Steven A. Lukowich, appeals pro se from the order entered

in the Erie County Court of Common Pleas, which dismissed his serial

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

§§ 9541-9546.    On August 19, 2003, a jury convicted Appellant of two

counts each of involuntary deviate sexual intercourse (“IDSI”) and indecent

assault, and one count each of aggravated indecent assault of a child less

than 13, endangering the welfare of children (“EWOC”), and corruption of

minors.   The court sentenced Appellant on November 26, 2003, to an

aggregate term of 14¾ to 39 years’ imprisonment. This Court affirmed the

judgment of sentence on May 26, 2005, and our Supreme Court denied

allowance of appeal on September 21, 2005.         See Commonwealth v.


_____________________________

*Former Justice specially assigned to the Superior Court.
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Lukowich, 875 A.2d 1169 (Pa.Super. 2005), appeal denied, 584 Pa. 706,

885 A.2d 41 (2005).     On March 21, 2006, Appellant timely filed his first

PCRA petition, which the court denied on June 22, 2006. This Court affirmed

the order denying relief on March 8, 2007, and our Supreme Court denied

allowance of appeal on August 21, 2007. See Commonwealth v. S.A.L.,

927 A.2d 653 (Pa.Super. 2009), appeal denied, 593 Pa. 739, 929 A.2d 1162

(2007).    On October 29, 2007, Appellant filed his second PCRA petition,

which the PCRA court denied on December 11, 2007. Appellant sought no

further review.   On May 4, 2016, Appellant filed the current, serial pro se

PCRA petition. The court issued Pa.R.Crim.P. 907 notice on May 16, 2016;

Appellant responded pro se on June 6, 2016.            The court dismissed

Appellant’s petition as untimely on June 9, 2016.       On June 22, 2016,

Appellant timely filed a pro se notice of appeal. The court ordered Appellant

on June 24, 2016 to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b); Appellant timely complied on July 8,

2016.

        The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Turner, 73 A.3d 1283 (Pa.Super. 2013), appeal denied,

625 Pa. 649, 91 A.3d 162 (2014). 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).


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The three statutory exceptions to the PCRA’s timeliness provisions allow for

very limited circumstances under which the late filing of a petition will be

excused; and a petitioner asserting a timeliness exception must file a

petition within 60 days of the date the claim could have been presented.

See 42 Pa.C.S.A. § 9545(b)(1-2).

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

20, 2005, upon expiration of the time to file a petition for writ of certiorari

with the United States Supreme Court. See U.S.Sup.Ct.R. 13 (allowing 90

days to file petition for writ of certiorari). Appellant filed the current petition

on May 4, 2016, which is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1).

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. Wolfe, ___

Pa. ___, 140 A.3d 651 (2016).        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


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Court has held that Alleyne applies retroactively, which is fatal to

Appellant’s effort to satisfy “new constitutional right” exception to 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);

Commonwealth v. Washington, ___ Pa. ___, 142 A.3d 810 (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 Turner, supra. Accordingly, we affirm.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2016




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