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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. J-S15042-20
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February 29, 2016) (unpublished memorandum).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
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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. J-S15042-20
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
-2- J-S15042-20
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)
-3- J-S15042-20
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”)).
-4- J-S15042-20
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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