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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA 

v. 

ROBERTO A. TAPIA, 

Appellant 

IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

No. 2782 EDA 2016 

Appeal from the PCRA Order June 30, 2016 

in the Court of Common Pleas of Bucks County, 

Criminal Division, No(s): CP-09-CR-0006457-2009 

BEFORE: OLSON, SOLANO and MUSMANNO, JJ. 

MEMORANDUM BY MUSMANNO, J.: FILED MAY 05, 2017 

Roberto A. Tapia ("Tapia") appeals, pro se, from the Order dismissing 

his pro se "Petition to Correct Illegal Sentence Pursuant to the Court's 

Inherent Jurisdiction to Correct Illegal Sentence" (hereinafter "the Petition"), 

which the common pleas court properly treated as a third Petition filed under 

the Post Conviction Relief Act ("PCRA").1 See 42 Pa.C.S.A. §§ 9541-9546. 

We affirm. 

1 See Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011) 

(stating that this Court has "repeatedly held that any petition filed after the 

judgment of sentence becomes final will be treated as a PCRA petition." 

(citation and ellipses omitted)); see also Commonwealth v. Pagan, 864 

A.2d 1231, 1233 (Pa. Super. 2004) (stating that "[u]nder the plain words of 

the [PCRA], if the underlying substantive claim is one that could potentially be 

remedied under the PCRA, that claim is exclusive to the PCRA." (emphasis in 

original) (citing 42 Pa.C.S.A. § 9542 (providing that "[t]he action established 

in this subchapter shall be the sole means of obtaining collateral relief and 

encompasses all other common law and statutory remedies for the same 

purpose that exist when this subchapter takes effect ....")). In the instant 

case, the underlying substantive claim presented in the Petition (a challenge 

to the legality of Tapia's sentence) is cognizable under the PCRA. 
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In January 2010, Tapia pled guilty to rape of a child and other sexual 

offenses, stemming from his repeatedly forcing his stepdaughter to engage in 

non-consensual intercourse, when she was between the ages of ten and 

fourteen. In May 2010, Tapia was sentenced to serve an aggregate prison 

term of 15 to 30 years. Tapia did not file a direct appeal. 

In February 2011, Tapia filed a timely first PCRA Petition, which the 

PCRA court later denied after a hearing. This Court affirmed the denial, after 

which the Supreme Court of Pennsylvania denied allowance of appeal. See 

Commonwealth v. Tapia, 64 A.3d 274 (Pa. Super. 2013) (unpublished 

memorandum), appeal denied, 70 A.3d 811 (Pa. 2013). 

In April 2015, Tapia filed a second, pro se PCRA Petition, which the 

PCRA court dismissed as untimely. On November 17, 2015, this Court 

affirmed the dismissal, ruling that the Petition was facially untimely and Tapia 

"made no attempt to plead or prove any of the PCRA untimeliness 

exceptions[,]" thus depriving the PCRA court of jurisdiction. Commonwealth 

v. Tapia, 134 A.3d 496 (Pa. Super. 2015) (unpublished memorandum at 4). 

On April 7, 2016, Tapia filed the instant pro se PCRA Petition, his third, 

asserting that his mandatory minimum sentence is unconstitutional under 

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Alleyne v. United States, 133 S. Ct. 2151 (2013).2 In response, the PCRA 

court issued a Pennsylvania Rule of Criminal Procedure 907 Notice of Intent to 

Dismiss the Petition without an evidentiary hearing, stating that the court 

lacked jurisdiction to address the Petition because it was untimely filed. Tapia 

did not respond to the Rule 907 Notice. On June 30, 2016, the PCRA court 

dismissed the Petition, after which Tapia filed a timely pro se Notice of 

Appeal. The PCRA court then ordered Tapia to file a Pa.R.A.P. 1925(b) 

concise statement of errors complained of on appeal, and Tapia timely 

complied. 

Tapia now presents the following issues for our review: 

I. Whether the [PCRA] court erred in treating [the] Petition ... as a Petition filed under the [PCRA], and/or[f] in the 

alternative[,] erred by failing to exercise it[]s inherent 

jurisdiction/power to correct [the] illegal sentence at any 

time, when made aware that [Tapia's] sentence was illegal, 

as shown on the face of the record? 

II. Whether the [PCRA] court erred and violated [Tapia's] rights 

under the Eig[hth] Amendment of the United States 

Constitution when it failed to correct his illegal minimum 

mandatory sentence pursuant to 42 Pa.C.S.A. § 9718, that 

was made retroactively illegal by the law of the 

Commonwealth of Pennsylvania[,] which makes a statute 

declared unconstitutional retroactively unconstitutional to 

the date of the statute[']s inception? 

2 In Alleyne, the Supreme Court held that, under the Sixth Amendment's 

right to a jury trial, facts "that increase mandatory minimum sentences must 

be submitted to the jury and found beyond a reasonable doubt." Id. at 2163. 

Tapia received a mandatory minimum sentence under 42 Pa.C.S.A. § 9718, 

which the Pennsylvania Supreme Court has held is void in its entirety and 

facially unconstitutional under Alleyne. Commonwealth v. Wolfe, 140 

A.3d 651, 663 (Pa. 2016). 

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III. Whether the [PCRA] court erred and violated [Tapia's] due 

process rights under the Fourteenth Amendment of the 

United States Constitution by not vacating and/or correcting 

his illegal sentence when the mandatory minimum 

sentencing statute he was sentenced under was declared 

unconstitutional and void, and the law of the Commonwealth 

makes a statute found unconstitutional retroactively 

unconstitutional to the date of the statute[']s inception, not 

merely the date the statute was declared unconstitutional? 

IV. Whether the [PCRA] court erred and violated [Tapia's] right 

to equal protection under the Fourteenth Amendment of the 

United States Constitution when it failed to correct his illegal 

mandatory minimum sentence pursuant to 42 Pa.C.S.A. 

§ 9718, where the law of the Commonwealth making a 

statute declared unconstitutional retroactively 

unconstitutional to the date of the statute[']s inception, 

made [Tapia's] sentence pursuant to the unconstitutional 

statute ([section] 9718) just as illegal as a person sentenced 

pursuant to that statute, who could raise the issue on 

unitary or direct review, or in a timely Petition for post 

conviction collateral relief? 

Brief for Appellant at 3-4 (some capitalization omitted). 

When reviewing an order dismissing a PCRA petition, we examine 

whether the determination of the PCRA court is supported by the record and 

free of legal error. Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. 

Super. 2014). 

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[.]" 42 Pa.C.S.A. § 9545(b)(1) (emphasis added). A judgment of 

sentence becomes final "at the conclusion of direct review, including 

discretionary review in the Supreme Court of the United States and the 

Supreme Court of Pennsylvania, or at the expiration of time for seeking the 

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review." Id. § 9545(b)(3). Pennsylvania courts may consider an untimely 

PCRA Petition if the petitioner can plead and prove one of the statutory 

timeliness exceptions set forth in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). However, 

"it is the petitioner's burden to plead in the petition and prove that one of the 

exceptions applies. That burden necessarily entails an acknowledgement by 

the petitioner that the PCRA petition under review is untimely but that one or 

more of the exceptions apply." Commonwealth v. Crews, 863 A.2d 498, 

501 (Pa. 2004) (citations omitted, emphasis in original). Additionally, "[i]f 

the petition is determined to be untimely, and no exception has been pled and 

proven, the petition must be dismissed without a hearing because 

Pennsylvania courts are without jurisdiction to consider the merits of the 

petition." Commonwealth v. Perrin, 947 A.2d 1284, 1285 (Pa. Super. 

2008); see also Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 

2010) (stating that a court may not address the merits of the issues raised if 

a PCRA petition is not timely filed). 

Tapia's judgment of sentence became final in June 2010. Accordingly, 

his instant PCRA Petition, filed over five years later, is facially untimely. 

Importantly, Tapia failed to acknowledge that the Petition was an untimely 

PCRA Petition, or plead therein any of the three timeliness exceptions. See 

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Crews, supra. Accordingly, the PCRA court lacked jurisdiction to address the 

Petition, and properly dismissed it.3 See Perrin, supra. 

However, even if Tapia had invoked Alleyne under the newly - recognized constitutional right timeliness exception (at 42 Pa.C.S.A. 

§ 9545(b)(1)(iii)), he would not be entitled to relief. Initially, his instant April 

7, 2016 Petition was filed well over sixty days after June 17, 2013, the date 

that Alleyne was decided. See 42 Pa.C.S.A. § 9545(b)(2) (providing that 

any PCRA petition invoking one of these exceptions "shall be filed within 60 

days of the date the claim could have been presented."); see also 

Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa. Super. 2007) (stating that 

"[w]ith regard to [a newly] -recognized constitutional right, this Court has held 

that the sixty-day period begins to run upon the date of the underlying 

judicial decision."). 

Further, the rule established in Alleyne does not apply retroactively 

where, as here, the judgment of sentence is final. See Commonwealth v. 

Washington, 142 A.3d 810, 820 (Pa. 2016) (holding that "Alleyne does not 

apply retroactively to cases pending on collateral review."); see also Miller, 

3 To the extent that Tapia argues that the PCRA court possessed "inherent 

authority" to vacate his allegedly illegal mandatory minimum sentence, see 

Brief for Appellant at 10-12, this claim lacks merit. Even if, arguendo, there 

was an obvious illegality in Tapia's sentence, the PCRA court would not have 

had jurisdiction to consider Tapia's claim. See Jackson, 30 A.3d at 521 

(recognizing that although there is "limited authority of a trial court to correct 

patent errors in sentences absent statutory jurisdiction under [42 Pa.C.S.A. 

§] 5505; it [does] not establish an alternate remedy for collateral relief that 

sidesteps the jurisdictional requirements of the PCRA."). 

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102 A.3d at 995 (stating that while Alleyne claims go to the legality of the 

sentence, a court cannot review a legality claim where it does not have 

jurisdiction). 

Order affirmed. 

Judgment Entered. 

J seph D. Seletyn, 

Prothonotary 

Date: 5/5/2017 

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