Com. v. Tapia, R. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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(unpublished memorandum).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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