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### -S23041-17 NON-PRECEDENTIALDECISION - SEE 

### SUPERIORCOURT 

### I.O.P. 

### 65.37 COMMONWEALTH OF PENNSYLVANIA

v. ROBERTO A.TAPIA, 

### Appellant IN THE SUPERIORCOURT OF PENNSYLVANIA

No. 2782 EDA 2016 Appeal

### from the PCRAOrder June 30, 2016 inthe CourtofCommon 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 

### InherentJurisdiction to Correct Illegal Sentence" 

### (hereinafter "the Petition"), which 

### the common pleas 

### court properlytreated 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], ifthe 

### underlying substantive claim is one

### thatcould 

### potentially be remedied under the PCRA, 

### that claim is exclusive tothe 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 tothe 

### legalityofTapia's sentence) iscognizable under the PCRA.J

### -S23041-17 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 15to 30years. Tapia did notfile 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),

### appealdenied, 70A.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

### thatthe Petitionwas 

### facially 

### untimely and Tapia 

### "made no 

### attempt to plead or prove any of the PCRA 

### untimeliness 

### exceptions[,]"thus depriving the PCRA

### courtof

### jurisdiction. 

### Commonwealth

v. 

### Tapia, 134A.3d 496 (Pa. Super. 

### 2015) (unpublished memorandum at4). On April 7, 2016, Tapia filed the 

### instantpro se PCRA Petition, his 

### third, asserting 

### that his 

### mandatory minimum sentence is 

### unconstitutional under



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### -S23041-17 

### Alleyne v. 

### UnitedStates, 133 S. Ct. 2151 

### (2013).2 In response, the PCRA 

### court issued a Pennsylvania Rule ofCriminal Procedure907 Notice

### of

### Intentto Dismiss 

### the Petition 

### without an 

### evidentiary hearing, stating 

### that the 

### court lacked

### jurisdictionto address the Petition because it was 

### untimelyfiled. 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 presentsthe

### following issues

### forour 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

### ofthe record? 

### II. Whetherthe [PCRA] 

### courterred 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 dateofthe

### statute[']s inception?

2 In 

### Alleyne, the Supreme Court held 

### that, under the Sixth Amendment's 

### rightto a

### jurytrial, facts

### "that increase 

### mandatory minimum sentences 

### must be

### submitted tothe

### juryand 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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### -S23041-17 

### 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 

### ofthe Commonwealth makes a 

### statute found 

### unconstitutional retroactively unconstitutional to the date ofthe 

### statute[']s inception, not merelythe date the 

### statutewas declared 

### unconstitutional? IV. 

### Whetherthe [PCRA] 

### court erred and 

### violated [Tapia's] 

### right to equal 

### protection under the FourteenthAmendment 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

### forAppellant at3-4 (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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### -S23041-17 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, 

### "itisthe 

### petitioner'sburdento 

### plead in the

### petition and prove 

### thatone ofthe exceptions applies. 

### That burden necessarily 

### entails an 

### acknowledgementby the

### petitionerthatthe PCRA

### petition underreview 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 

### determinedto 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 ofthe issues raised if

a PCRA 

### petition is not

### timelyfiled). 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



## -5J

### -S23041-17 

### Crews,

### supra. Accordingly,the PCRA

### court lacked

### jurisdictionto addressthe 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 

### instantApril 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, 923A.2d 513, 517 (Pa. Super. 2007) 

### (stating

### that 

### "[w]ith regard to [a 

### newly]-recognized 

### constitutional right,thisCourt 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, 142A.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 Appellantat 

### 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 

### thatalthough there is

### "limited authority of a

### trial courtto 

### correct patent errors in sentences absent 

### statutoryjurisdiction under [42 Pa.C.S.A. §] 5505; it 

### [does] not establish an 

### alternate remedy 

### for collateral relief

### that sidestepsthe

### jurisdictional requirements ofthe PCRA.").

- 6 -J

### -S23041-17 102 A.3d at 995 

### (stating 

### thatwhile 

### 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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