Com. v. Lukowich, S. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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