Case Information
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA v.
ROBERTO A. TAPIA,
Appellant No. 2782 EDA 2016 Appeal from the Order 30, 2016 the Court of Common Pleas Bucks County, Criminal Division, No(s): CP-09-CR-0006457-2009
BEFORE: OLSON, SOLANO and MUSMANNO, JJ. FILED MAY 05, 2017
MEMORANDUM BY MUSMANNO, J.: Roberto A. ("Tapia") appeals, pro se, from the Order dismissing "Petition Correct Illegal Sentence Pursuant the Court's Inherent Jurisdiction Correct Illegal Sentence" (hereinafter "the Petition"), which the common pleas court properly treated third Petition filed under Post Conviction Relief Act ("PCRA").1 See Pa.C.S.A. §§ 9541-9546. We affirm. See Jackson, A.3d 516, Super. 2011)
(stating that this Court "repeatedly held that becomes final will treated petition." (citation ellipses omitted)); see also Pagan, A.2d 1231, 1233 that "[u]nder plain words of [PCRA], if the underlying substantive claim is that could potentially be remedied under the PCRA, exclusive PCRA." (emphasis in original) (citing 9542 (providing "[t]he action established this subchapter shall sole means of obtaining collateral relief encompasses all other common statutory remedies same purpose exist this subchapter takes effect ....")). In the instant case, the underlying substantive claim presented (a challenge legality of Tapia's sentence) cognizable under the PCRA.
In January 2010, Tapia pled guilty to rape of child other sexual offenses, stemming from his repeatedly forcing his stepdaughter engage in non-consensual intercourse, she was between the ages of ten fourteen. In May 2010, Tapia was sentenced to serve aggregate prison term years. Tapia did not file direct appeal.
In February 2011, Tapia filed timely first PCRA Petition, which the PCRA court later denied hearing. This Court affirmed the denial, after which the Supreme Court of Pennsylvania denied allowance of appeal. See Tapia, A.3d 274 (Pa. Super. 2013) (unpublished memorandum), appeal denied, A.3d 811
In April 2015, second, se PCRA Petition, which the untimely. On November 17, 2015, this Court affirmed the dismissal, ruling facially untimely Tapia "made no attempt plead or prove any of the untimeliness exceptions[,]" thus depriving the of jurisdiction. Commonwealth Tapia, 2015) (unpublished memorandum at 4).
On April Tapia filed instant pro his third, asserting unconstitutional under United States, S. Ct. (2013).2 In response, the PCRA issued a Pennsylvania Rule of Criminal Procedure 907 Notice of Intent to Dismiss Petition without evidentiary hearing, stating court lacked jurisdiction to address because it untimely filed. Tapia did not respond to the Rule 907 Notice. On 30, 2016, the court the Petition, which Tapia filed a Notice of Appeal. The then ordered Tapia to file a Pa.R.A.P. 1925(b) concise statement errors complained of on appeal, Tapia timely complied.
Tapia now presents the following issues our review: I. Whether the [PCRA] erred treating [the] ... Petition filed under the [PCRA], and/or[f] the alternative[,] erred by failing exercise it[]s inherent jurisdiction/power correct [the] illegal sentence at any time, when made aware [Tapia's] sentence illegal, shown on face record? II. Whether the [PCRA] court erred violated [Tapia's] rights under Eig[hth] Amendment of United States Constitution failed correct illegal minimum mandatory pursuant to 42 Pa.C.S.A. that of the made by Commonwealth of Pennsylvania[,] which makes statute declared unconstitutional retroactively unconstitutional to date of statute[']s inception? In Alleyne, the Supreme Court held that, under the Sixth Amendment's right jury trial, facts "that increase mandatory minimum sentences must submitted the jury found beyond reasonable doubt." Id. at 2163. received sentence under 9718, which the Pennsylvania Supreme Court held void its entirety facially unconstitutional under Alleyne. Commonwealth Wolfe,
III. Whether the [PCRA] erred and violated [Tapia's] due process rights under the Fourteenth Amendment of the United States Constitution by vacating and/or correcting the mandatory minimum illegal sentence when his sentencing statute he sentenced under declared unconstitutional void, and the law of the Commonwealth statute found unconstitutional retroactively makes unconstitutional the date of the statute[']s inception, not merely the date the statute declared unconstitutional? IV. Whether the [PCRA] erred violated [Tapia's] right to equal protection under the Fourteenth Amendment of the United States Constitution failed correct illegal sentence pursuant to 42 Pa.C.S.A. 9718, where the of the Commonwealth making a statute unconstitutional declared unconstitutional date of statute[']s inception, made [Tapia's] pursuant unconstitutional statute ([section] 9718) just person sentenced pursuant statute, who could raise issue on unitary or direct review, or for post conviction collateral relief?
Brief Appellant at 3-4 (some capitalization omitted).
When reviewing order dismissing petition, we examine whether determination supported by record free of legal error. Miller, (Pa.
Under PCRA, petition, "including second or subsequent petition, shall within year of the date the judgment becomes final[.]" 9545(b)(1) (emphasis added). A of sentence becomes final "at the conclusion of direct review, including discretionary review the Supreme Court of the United States the Supreme Court of Pennsylvania, or at the expiration time for seeking review." Id. 9545(b)(3). Pennsylvania courts may consider an untimely PCRA if petitioner can plead prove one of the statutory timeliness exceptions set forth in 9545(b)(1)(i)-(iii). However, "it is petitioner's burden plead petition prove that one of the exceptions applies. That burden necessarily entails an acknowledgement by petitioner that petition under review is untimely but or more of the exceptions apply." v. Crews, 498, 2004) (citations omitted, emphasis original). Additionally, "[i]f petition is determined untimely, no exception been pled and petition must without hearing because proven, Pennsylvania courts are without jurisdiction consider the merits of petition." Perrin, 947 A.2d 1284, Super. 2008); see also Commonwealth Albrecht, (Pa. may not address the merits of the issues raised if filed).
Tapia's became final 2010. Accordingly, instant Petition, over five years later, facially untimely. Importantly, failed to acknowledge untimely or plead therein three timeliness exceptions. See Crews, supra. Accordingly, the lacked jurisdiction to address properly it.3 See Perrin, supra. invoked Alleyne under the newly -
However, even if Tapia had recognized constitutional right timeliness exception (at 42 Pa.C.S.A. 9545(b)(1)(iii)), he would not entitled relief. Initially, his instant April 2016 Petition filed well over sixty days June 17, 2013, the date that Alleyne decided. See 9545(b)(2) (providing that invoking of these exceptions "shall within 60 days date the claim could have been presented."); see also Boyd, 923 A.2d 513, 517 that "[w]ith regard to [a newly] -recognized constitutional right, this Court held that sixty-day period begins to run upon the date of the underlying judicial decision.").
Further, the rule established does not apply where, here, final. See v. Washington, 2016) (holding that "Alleyne does not apply retroactively cases pending on collateral review."); see also Miller, To extent argues possessed "inherent authority" vacate allegedly sentence, see Brief for Appellant at 10-12, this lacks merit. Even if, arguendo, there an obvious illegality Tapia's sentence, the would not have had jurisdiction consider Tapia's claim. See Jackson, at (recognizing although there "limited authority trial court correct patent errors sentences absent statutory jurisdiction under [42 Pa.C.S.A. §] 5505; [does] not establish alternate remedy collateral relief that sidesteps the jurisdictional requirements of PCRA.").
- - at 995 while claims go legality of sentence, court cannot review legality where it does have jurisdiction).
Order affirmed.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 5/5/2017
