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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : JHEN A. SCUTELLA, :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 t o 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 41⁄2 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 t o Dismiss, the PCRA court dismissed the Petition in June 2015. Scutella file d a timely Notice of Appeal. On appeal, Scutella raises the following question for review: “Did the [PCRA court] err when it determined the sentence im posed did not violate

1 35 P.S. § 780-113(a)(30).J-S08036-16

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[Scutella’s] constitutional rights under [a] new ru le 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 t he 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 current ly serving a sentence. See 42 Pa.C.S.A. § 9543(a)(1)(i). Thus, he is ineligi ble for PCRA relief. See id. Even if Scutella were currently serving a sentenc e, 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 ju dgment becomes final[.]” See 42 Pa.C.S.A. § 9545(b)(1) (emphasis added). Here, Scutella’s judgment of sentence became final in August 2005, w hen 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 fi le 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 for th under 42 Pa.C.S.A. § 9545(b)(1)(i-iii). Any petition invoking one of these exceptions “shall beJ-S08036-16

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filed within 60 days of the date the claim could ha ve been presented.” Id. § 9545(b)(2); Commonwealth v. Albrecht , 994 A.2d 1091, 1094 (Pa. 2010). Here, Scutella claims that the United States Supre me Court’s decision
in Alleyne v. United States , 133 S. Ct. 2151 (2013), affords him relief under the newly recognized constitutional right exc eption 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 wi thin 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 h as held that the Alleyne decision is not a sufficient basis to invoke the ex ception at Section 9545(b)(1)(iii), as the decision does not apply ret roactively. 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 Su preme Court has held that Alleyne is to be applied retroactively to cases in which t he judgment of sentence has become final. This is fatal to [a]ppe llant’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, unde r the PCRA, only the United States Supreme Court or the Pennsylvania Sup reme 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 sentenc e 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 “m ay [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).