Com. v. Milano, P. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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