J-S15042-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    JHEN A. SCUTELLA                           :
                                               :
                      Appellant                :   No. 1733 WDA 2019

            Appeal from the PCRA Order Entered November 19, 2019
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                           CP-25-CR-0001324-2004


BEFORE:      BENDER, P.J.E., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                            FILED MARCH 30, 2020

        Appellant Jhen A. Scutella files this pro se appeal from the order of the

Court of Common Pleas of Erie County, denying his “Motion to Modify Illegal

Sentence.”     As Appellant’s motion should have been deemed an untimely

petition under the Post-Conviction Relief Act (PCRA) (42 Pa.C.S.A. §§ 9541-

9546), we affirm on different grounds.

        In July 2005, Appellant pled guilty to possession of a controlled

substance with intent to deliver (PWID).           On September 7, 2005, the trial

court sentenced Appellant to 4½ to 10 years’ imprisonment. Appellant did

not file a direct appeal.       Appellant subsequently filed two PCRA petitions,

both of which were denied.


____________________________________________


*   Former Justice specially assigned to the Superior Court.
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      In May 2015, Appellant filed his third PCRA petition, arguing that his

sentence was illegal pursuant to the United States Supreme Court’s decision

in   Alleyne      v.   U.S.,   570   U.S.    99,   133   S.Ct.   2151   (2013)   and

Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014).                      The PCRA

court issued notice of its intent to dismiss Appellant’s petition without a

hearing pursuant to Pa.R.Crim.P. 907 and subsequently denied the petition.

      On February 29, 2016, this Court affirmed the denial of Appellant’s

third petition.    Commonwealth v. Scutella, 1136 WDA 2015 (Pa.Super.

February 29, 2016) (unpublished memorandum). This Court concluded that

Appellant was ineligible for relief under the PCRA because he was not serving

a sentence.    See 42 Pa.C.S.A. § 9543(a)(1)(i).          Moreover, this Court also

determined that Appellant’s PCRA petition was untimely filed and did not

raise an applicable exception to the timeliness requirements.

      On September 16, 2019, Appellant filed his “Motion to Modify Illegal

Sentence,” again claiming that he received an illegal mandatory minimum

sentence in violation of this Court’s decision in Newman. On November 19,

2019, the lower court expressly denied Appellant’s motion, reasoning that

Appellant was not entitled to relief as he had previously litigated this issue in

his third PCRA petition. On November 21, 2019, Appellant filed this appeal.

      In its Rule 1925(a) opinion, the lower court asserted that in denying

Appellant’s motion to modify his sentence, it had intended to treat

Appellant’s Motion to Modify Illegal Sentence as his fourth PCRA petition.

The lower court asserted that it could not issue a final order pursuant to the

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rules governing PCRA procedure as Appellant’s notice of appeal had removed

jurisdiction from the Court of Common Pleas.

       It is well-settled that the PCRA is intended to be the sole means of

achieving post-conviction relief. 42 Pa.C.S.A. § 9542; Commonwealth v.

Haun, 613 Pa. 97, 32 A.3d 697 (2011). This Court has held that “any

petition filed after the judgment of sentence becomes final will be treated as

a PCRA petition.”         Commonwealth v. Jackson, 30 A.3d 516, 521

(Pa.Super. 2011). In Jackson, this Court held that the lower court did not

have jurisdiction to consider Jackson’s “motion to correct illegal sentence,”

which was filed after his judgment of sentence became final. Id. at 521-22.

       As such, the lower court in this case did not have jurisdiction to enter

its November 19, 2019 order denying Appellant’s “Motion to Modify Illegal

Sentence,” but instead, should have deemed Appellant’s filing to be a PCRA

petition, as it was filed after his judgment of sentence became final.

       We first note that Appellant is ineligible for PCRA relief as he is no

longer serving a sentence.        See 42 Pa.C.S.A. § 9543(a)(1) (requiring that

petitioner plead and prove that he is “currently serving a sentence of

imprisonment, probation, or parole for the crime” at issue). However, even

assuming that Appellant is currently serving a sentence, he is not entitled to

PCRA relief as his petition was untimely filed.1

____________________________________________


1Moreover, to the extent Appellant claims his challenge to the legality of his
sentence cannot be waived and can be raised at any time, our courts have
(Footnote Continued Next Page)


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      It is well-established that “the PCRA's timeliness requirements are

jurisdictional in nature and must be strictly construed; courts may not

address the merits of the issues raised in a petition if it is not timely

filed.” Commonwealth v. Walters, 135 A.3d 589, 591 (Pa.Super. 2016)

(citations omitted). Generally, a PCRA petition “including a second or

subsequent petition, shall be filed within one year of the date the judgment

of sentence becomes final.” 42 Pa.C.S.A. § 9545(b)(1). A judgment of

sentence becomes final at the conclusion of direct review or the expiration of

the time for seeking the review. 42 Pa.C.S.A. § 9545(b)(3).

      However, Pennsylvania courts may consider an untimely PCRA petition

if the petitioner explicitly pleads and proves one of the three exceptions

enumerated in Section 9545(b)(1), which include: (1) the petitioner's

inability to raise a claim as a result of governmental interference; (2) the

discovery of previously unknown facts or evidence that would have

supported a claim; or (3) a newly-recognized constitutional right that has

been held to apply retroactively by the Supreme Court of the United States

or the Supreme Court of Pennsylvania. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).


(Footnote Continued) _______________________

emphasized that “a legality of sentencing issue must be raised in a timely
filed PCRA Petition over which we have jurisdiction.” Commonwealth v.
Olson, 179 A.3d 1134, 1137 (Pa.Super. 2018) (citing 42 Pa.C.S. §
9545(b); Commonwealth v. Fahy, 558 Pa. 313, 331, 737 A.2d 214, 223
(1999) (stating that “[a]lthough legality of sentence is always subject to
review within the PCRA, claims must still first satisfy the PCRA's time limits
or one of the exceptions thereto”)).



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       In this case, Appellant’s judgment of sentence became final in October

2005, when his time for seeking a direct appeal expired.            As a result,

Appellant had until October 2006 to file a timely PCRA petition.            This

petition, filed on September 16, 2019, is facially untimely.

       Appellant cannot invoke the timeliness exception under Section

9545(b)(1)(iii) by alleging his sentencing claim is based on a newly-

recognized constitutional right expressed in Alleyne.           In Alleyne, the

United States Supreme Court held that “[a]ny fact that, by law, increases

the penalty for a crime is an ‘element’ that must be submitted to the jury

and found beyond a reasonable doubt.” Alleyne, 570 U.S. at 103, 133 S.

Ct. at 2155. However, our Supreme Court held that Alleyne does not apply

apply retroactively to collateral attacks upon mandatory minimum sentences

advanced in PCRA proceedings. Commonwealth v. Washington, 636 Pa.

301, 316, 142 A.3d 810, 820 (2016).2

       As noted above, Appellant's sentence became final in 2005, nearly

fourteen years before this petition was filed. As our courts have held that

Alleyne does not apply retroactively to petitions seeking collateral relief,

Appellant failed to plead and prove any of the timeliness exceptions provided

in Section 9545 are applicable.            Accordingly, the PCRA court correctly

____________________________________________


2 Appellant’s citation to this Court’s decision in Newman does not entitle
him to relief, as the Newman court simply held that Alleyne may be
applied retroactively to cases pending on direct appeal when Alleyne was
decided. This holding is inapplicable to the instant case.



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dismissed Appellant's untimely petition, which it had no jurisdiction to

review.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/30/2020




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