J-S08036-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 1136 WDA 2015

                   Appeal from the PCRA Order June 18, 2015
                  in the Court of Common Pleas of Erie County,
               Criminal Division, No(s): CP-25-CR-0001324-2004

BEFORE: STABILE, DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                        FILED FEBRUARY 29, 2016

        Jhen A. Scutella (“Scutella”) appeals, pro se, from the Order

dismissing his third Petition for relief pursuant to the Post Conviction Relief

Act (“PCRA”). See 42 Pa.C.S.A. § 9541-9546. We affirm.

        In July 2005, Scutella pled guilty to one count of possession with

intent to deliver a controlled substance.1 On September 7, 2005, the trial

court sentenced Scutella to 4½ to 10 years in prison. Scutella did not file a

direct appeal.

        In May 2015, Scutella, pro se, filed the instant PCRA Petition, his third.

After issuing a Pa.R.Crim.P. 907 Notice of Intent to Dismiss, the PCRA court

dismissed the Petition in June 2015. Scutella filed a timely Notice of Appeal.

        On appeal, Scutella raises the following question for review: “Did the

[PCRA court] err when it determined the sentence imposed did not violate



1
    35 P.S. § 780-113(a)(30).
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[Scutella’s] constitutional rights under [a] new rule of law?”         Brief for

Appellant at 4.

             We review an order dismissing a petition under the PCRA
      in the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court
      and the evidence of record. We will not disturb a PCRA court’s
      ruling if it is supported by evidence of record and is free of legal
      error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      Initially, it appears that Scutella is not currently serving a sentence.

See 42 Pa.C.S.A. § 9543(a)(1)(i). Thus, he is ineligible for PCRA relief. See

id. Even if Scutella were currently serving a sentence, his claim does not

entitle him to relief under the PCRA.

      Under the PCRA, any PCRA petition “including a second or subsequent

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

final[.]” See 42 Pa.C.S.A. § 9545(b)(1) (emphasis added). Here, Scutella’s

judgment of sentence became final in August 2005, when the time for

seeking direct review expired.     See 42 Pa.C.S.A. § 9545(b)(3); see also

Pa.R.A.P. 903(a). Thus, Scutella had until August 2006 to file a Petition for

relief under the PCRA. Because Scutella did not file the instant PCRA Petition

until May 2015, his Petition is facially untimely.

      However, we may consider an untimely PCRA petition if the petitioner

can plead and prove one of three exceptions set forth under 42 Pa.C.S.A.

§ 9545(b)(1)(i-iii). Any petition invoking one of these exceptions “shall be


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filed within 60 days of the date the claim could have been presented.” Id.

§ 9545(b)(2); Commonwealth v. Albrecht, 994 A.2d 1091, 1094 (Pa.

2010).

      Here, Scutella claims that the United States Supreme Court’s decision

in Alleyne v. United States, 133 S. Ct. 2151 (2013), affords him relief

under the newly recognized constitutional right exception at 42 Pa.C.S.A.

§ 9545(b)(1)(iii).2 Brief for Appellant at 7, 10, 12-13.

      Scutella did not file the instant PCRA Petition within sixty days of the

date the Alleyne decision was filed, as required under the PCRA. See 42

Pa.C.S.A. § 9545(b)(2). In any event, this Court has held that the Alleyne

decision is not a sufficient basis to invoke the exception at Section

9545(b)(1)(iii),   as   the   decision   does   not   apply   retroactively.   See

Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (stating

that “[e]ven assuming that Alleyne did announce a new constitutional right,

neither our Supreme Court, nor the United States Supreme Court has held

that Alleyne is to be applied retroactively to cases in which the judgment of

sentence has become final. This is fatal to [a]ppellant’s argument regarding

2
   Scutella states that this Court recognized a new “rule of law” in
Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (holding that
Alleyne will be applied to cases pending on direct appeal when Alleyne was
issued). Brief for Appellant at 10. However, under the PCRA, only the
United States Supreme Court or the Pennsylvania Supreme Court can
recognize a new constitutional right and determine whether that right will be
applied retroactively.    See 42 Pa.C.S.A. § 9545(b)(1)(iii).       Because
Newman interprets the rule set forth in Alleyne, we will interpret Scutella’s
claim as a challenge to the legality of his sentence under Alleyne.



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the PCRA time-bar.”); see also Commonwealth v. Riggle, 119 A.3d 1058,

1067 (Pa. Super. 2015).3     Thus, the PCRA court did not err in dismissing

Scutella’s Petition as untimely.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/29/2016




3
  While Scutella correctly states that challenges to the legality of the
sentence are generally non-waivable, such claims “may [only] be
entertained so long as the reviewing court has jurisdiction.”
Commonwealth v. Robinson, 931 A.2d 15, 19-20 (Pa. Super. 2007) (en
banc) (emphasis added).



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