J-S86035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                   v.

RAYMOND ALLEN NOON, JR.

                        Appellant                   No. 756 WDA 2016


                  Appeal from the PCRA Order May 6, 2016
             In the Court of Common Pleas of Somerset County
            Criminal Division at No(s): CP-56-CR-0000422-2004


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

JUDGMENT ORDER BY GANTMAN, P.J.:               FILED NOVEMBER 23, 2016

      Appellant, Raymond Allen Noon, Jr., appeals pro se from the order

entered in the Somerset County Court of Common Pleas, which dismissed

his second petition filed under the Post Conviction Relief Act (“PCRA”), at 42

Pa.C.S.A. §§ 9541-9546. On August 2, 2004, Appellant pled guilty to one

count each of involuntary deviate sexual intercourse (“IDSI”) with a child

and aggravated indecent assault of a child less than 16.           The court

sentenced Appellant on November 10, 2004, to an aggregate term of 8½-19

years’ imprisonment, which included a mandatory minimum per 42 Pa.C.S.A.

§ 9718(a)(1) (providing mandatory minimum sentence for conviction of IDSI

where victim is less than 16).      Appellant filed post-sentence motions on

December 6, 2004, which the court denied on January 18, 2005. Appellant


_____________________________

*Former Justice specially assigned to the Superior Court.
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did not pursue direct review. On November 28, 2005, Appellant timely filed

a pro se first PCRA petition; the PCRA court appointed counsel.      Following

several hearings, the PCRA court denied Appellant’s petition on May 1, 2009.

        On August 19, 2015, Appellant pro se filed the current PCRA petition;

the court appointed counsel. The PCRA court issued Pa.R.Crim.P. 907 notice

on December 8, 2015, to which Appellant filed a response on December 24,

2015.     On May 6, 2016, the PCRA court denied relief.      Appellant timely

appealed on May 20, 2016.       On May 24, 2016, the PCRA court ordered

Appellant to file a concise statement per Pa.R.A.P. 1925(b) and permitted

counsel to withdraw on May 26, 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).

The three statutory exceptions to the timeliness provisions of the PCRA allow

for very limited circumstances to excuse the late filing of a petition; 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)(1-

2). When asserting the newly created constitutional right exception under

Section 9545(b)(1)(iii), “a petitioner must prove that there is a ‘new’


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constitutional right and that the right ‘has been held’ by that court to apply

retroactively.” Commonwealth v. Chambers, 35 A.3d 34, 41 (Pa.Super.

2011), appeal denied, 616 Pa. 625, 46 A.3d 715 (2012).

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

17, 2005, when the time to file a direct appeal expired.       See Pa.R.A.P.

903(a). Appellant unsuccessfully litigated his first PCRA petition. On August

19, 2015, Appellant filed his current (second) petition, which is patently

untimely. See 42 Pa.C.S.A. § 9545(b)(1). Appellant attempts to invoke the

“new constitutional right” exception to the PCRA time bar, relying on

Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314

(2013), and Commonwealth v. Wolfe, ___ Pa. ___, 140 A.3d 651 (June

20, 2016), to declare 42 Pa.C.S.A. § 9718 unconstitutional. Alleyne and its

progeny, however, do not apply retroactively on collateral review.        See

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

Alleyne announced new constitutional right, neither our Supreme Court nor

United States Supreme Court has declared Alleyne to apply retroactively).

See also Commonwealth v. Washington, ___ Pa. ___, 142 A.3d 810

(July 19, 2016) (holding Alleyne does not apply retroactively on collateral

review to challenge to mandatory minimum sentence as “illegal”).        Thus,

Appellant’s second PCRA petition remains untimely. Accordingly, we affirm.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/23/2016




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