J-S70039-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ROBERTO A. TAPIA

                            Appellant                No. 1694 EDA 2015


                   Appeal from the PCRA Order May 18, 2015
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0006457-2009


BEFORE: DONOHUE, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                      FILED NOVEMBER 17, 2015

        Roberto A. Tapia appeals from the order entered in the Court of

Common Pleas of Bucks County, dismissing his petition filed pursuant to the

Post Conviction Relief Act (PCRA).1 Upon review, we affirm.

        Tapia forced his stepdaughter to engage in non-consensual intercourse

multiple times when she was between the ages of ten and fourteen.           On

January 7, 2010, Tapia entered a guilty plea to one count of rape of a child, 2

two counts of involuntary deviate sexual intercourse,3 and one count of
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*
    Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. § 3121(c).
3
    18 Pa.C.S. § 3123.
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statutory sexual assault.4 On May 19, 2010, Tapia was sentenced to ten to

twenty years’ incarceration for rape of a child followed by five to ten years’

incarceration for involuntary deviate sexual intercourse. Tapia did not file a

direct appeal.

        Tapia filed a PCRA petition on February 11, 2011 and counsel was

appointed. Following a hearing on July 27, 2011, the PCRA court denied the

petition. This Court affirmed the PCRA court’s decision on January 11, 2013.

See     Commonwealth          v.   Tapia,      64   A.3d   274   (Pa.   Super.   2012)

(unpublished memorandum). Thereafter, the Pennsylvania Supreme Court

denied allowance of appeal.

        On April 13, 2015, Tapia filed a second PCRA petition, which is the

subject of the instant appeal. The PCRA court provided Tapia with a notice

of intent to dismiss the second petition pursuant to Pa.R.Crim.P. 907 on April

24, 2015, and dismissed the petition on May 18, 2015. This timely appeal

followed, in which Tapia makes various ineffective assistance of counsel

claims and asserts that he was sentenced to an unconstitutional mandatory

minimum sentence.5



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4
    18 Pa.C.S. § 3122.1.
5
 We note that Tapia’s brief fails to follow the format set forth in Pa.R.A.P.
2111, including the lack of a separate statement of the questions involved.
This does not affect our decision, however, since we dispose of this matter
on jurisdictional grounds as discussed infra.



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      Our standard and scope of review of the denial of a PCRA petition is

well-settled.   We review the PCRA court’s findings of fact to determine

whether they are supported by the record, and review its conclusions of law

to determine whether they are free from legal error.       Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our review is limited to

the findings of the PCRA court and the evidence of record, viewed in the light

most favorable to the prevailing party at the trial level. Id.

      Before we may consider the merits of Tapia’s claims, however, we

must consider whether this appeal is properly before us.

      A PCRA petition, including a second or subsequent one, must be
      filed within one year of the date the petitioner’s judgment of
      sentence became final, unless he pleads and proves one of the
      three exceptions outlined in 42 Pa.C.S. § 9545(b)(1).           A
      judgment becomes final at the conclusion of direct review by
      [the Pennsylvania Supreme] Court or the United States Supreme
      Court, or at the expiration of the time for seeking such review.
      42 Pa.C.S. § 9545(b)(3). The PCRA’s timeliness requirements
      are jurisdictional; therefore, a court may not address the merits
      of the issues raised if the petition was not timely filed. The
      timeliness requirements apply to all PCRA petitions, regardless of
      the nature of the individual claims raised therein. The PCRA
      squarely places upon the petitioner the burden of proving an
      untimely petition fits within one of the three exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (citations and

footnote omitted). Although the legality of a sentence may always be raised

under the PCRA, such “claims must still first satisfy the PCRA’s time limits or

one of the exceptions thereto.”    Commonwealth v. Fahy, 737 A.2d 214,

223 (Pa. 1999).




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       Tapia was sentenced on May 19, 2010, and did not file a direct appeal.

Thus, Tapia’s judgment of sentence became final on June 18, 2010, when

his time to file a notice of appeal to this Court expired. See Pa.R.A.P. 903.

Tapia had one year from that date to file a PCRA petition, specifically, until

June 18, 2011. However, Tapia filed the instant PCRA petition on April 13,

2015, such that the PCRA petition is untimely on its face. Thus, the PCRA

court lacked jurisdiction to review the PCRA petition unless Tapia pled and

proved one of the statutory exceptions to the time-bar.6

       Here, Tapia made no attempt to plead or prove any of the PCRA

untimeliness exceptions.        Therefore, the trial court had no jurisdiction to

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6
  The three statutory exceptions for an untimely petition under the PCRA
consist of the following:

       (i) the failure to raise the claim previously was the result of
       interference by government officials with the presentation of the
       claim in violation of the Constitution or laws of this
       Commonwealth or the Constitution or laws of the United States;

       (ii) the facts upon which the claim is predicated were unknown
       to the petitioner and could not have been ascertained by the
       exercise of due diligence; or

       (iii) the right asserted is a constitutional right that was
       recognized by the Supreme Court of the United States or the
       Supreme Court of Pennsylvania after the time period provided in
       this section and has been held by that court to apply
       retroactively.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, a petition invoking a timeliness
exception pursuant to the statute must “be filed within 60 days of the date
the claim could have been presented.” Id. at § 9545(b)(2).




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consider Tapia’s petition and properly dismissed it.   Jones, supra; Fahy,

supra.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/17/2015




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