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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 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 Super. 2013) (unpublished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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Com. v. Tapia, R.
Combined Opinion