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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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