OLSON, J.

Appeal from the Judgment of Sentence Entered November 9, 2020 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0003898-2005

BEFORE: OLSON, J., KING, J., and McCAFFERY, J.

OPINION

OLSON, J.

These cases are before us on consolidated cross-appeals. At 502 EDA 2021, the Commonwealth of Pennsylvania appeals from the judgment of sentence entered on November 9, 2020. In its appeal, the Commonwealth argues that the trial court lacked jurisdiction to resentence Reinaldo Fantauzzi (Fantauzzi) on November 9, 2020, because there was no subject matter jurisdiction for the PCRA court to entertain a petition for collateral relief filed by Fantauzzi in July 2014. See Commonwealth's Brief (502 EDA 2021) at 10-19. Because the PCRA court lacked jurisdiction over the July 2014 petition, the Commonwealth reasons that its order granting relief in the form of resentencing, and all subsequent judicial orders addressing Fantauzzi's then-newly imposed sentence, are legal nullities and void ab initio. Id. At 503 EDA 2021, Fantauzzi raises a discretionary sentencing challenge and further claims that due process warranted the dismissal of an attempted homicide charge because deficiencies in the criminal information failed to place Fantauzzi on notice that the Commonwealth intended to prosecute him for attempted homicide with serious bodily injury. See Fantauzzi's Brief (503 EDA 2021) at 14-24.

After careful review and consideration, we conclude that the Commonwealth's jurisdictional argument is dispositive of all issues raised within the context of this appeal. Accordingly, we vacate the judgment of sentence entered on November 9, 2020, and remand this matter for re-imposition of the original sentence imposed by the trial court on September 14, 2006, and affirmed by this Court on August 15, 2007.

The record demonstrates that, on July 12, 2006, a jury convicted Fantauzzi of criminal attempt to commit homicide (2 counts), aggravated assault (4 counts), recklessly endangering another person (4 counts), persons not to possess firearms (1 count), and firearms not to be carried without a license (1 count). The charges arose from the following event:

[Fantauzzi's convictions arose from an incident in which he shot] at four people in a drive-by incident. One person was sitting in a car; three were on a porch of a nearby house. One of the individuals on the porch, who was already wheelchair bound, was struck [by a bullet] in the leg, thereby constituting serious bodily injury.

The trial court imposed an aggregate sentence of 28 to 56 years' incarceration on September 14, 2006. This Court affirmed Fantauzzi's judgment of sentence on August 15, 2007, and our Supreme Court subsequently denied Fantauzzi's petition for allowance of appeal. Commonwealth v. Fantauzzi, 935 A.2d 10 (Pa. Super. Filed August 15, 2007) (unpublished memorandum), appeal denied, 940 A.2d 362 (Pa. 2007).

On February 13, 2008, Fantauzzi filed pro se a petition pursuant to the PCRA. The PCRA court denied Fantauzzi's petition on December 1, 2008. This Court affirmed the order denying Fantauzzi's PCRA petition on January 13, 2010. Commonwealth v. Fantauzzi, 991 A.2d 356 (Pa. Super. Filed January 13, 2010) (unpublished memorandum).

On July 3, 2014, Fantauzzi filed pro se a petition for writ of habeas corpus. As our resolution of the issues raised in these appeals turns on the legal implications of Fantauzzi's July 3, 2014 filing, we recount the procedural developments surrounding that submission in some detail.

Upon its filing, the PCRA court treated Fantauzzi's petition for writ of habeas corpus as a PCRA petition. See PCRA Court Order, 8/7/14 (stating, "[t]his petition is construed as a motion for post-conviction collateral relief" (extraneous capitalization omitted)). The PCRA court subsequently appointed PCRA counsel to represent Fantauzzi. On November 5, 2014, the PCRA court ordered the following:

[Fantauzzi] shall have 30 days to file a petition nunc pro tunc for reconsideration of sentence and a brief in support thereof. The Commonwealth shall have 30 days thereafter to file a responsive brief. Upon receipt of the Commonwealth's brief, the parties shall list this matter for a miscellaneous hearing list for argument.

At the February 20, 2015 hearing, the PCRA court stated,

[Fantauzzi] has pursued petitions for post[-]conviction [collateral] relief which have been exhausted. He filed the instant motion to correct illegal sentence and nunc pro tunc motion to modify sentence on [] November 12, 2014. We are here for the hearing on that matter.

I have interpreted [Alleyne, supra, ] and not only [its] progeny but also the cases that came before it[ regarding] Pennsylvania mandatory minimum sentences. [W]e believe that there was an issue with regard to the sentencing. However, the strength of that legal issue by agreement of what we're doing here today is not being contested. [T]his is part of the agreement that I believe we had with the Commonwealth. The [trial c]ourt is not being asked to pass on whether or not our motion [to correct illegal sentence] is correct or not. It is simply an agreement by the Commonwealth and [Fantauzzi] to allow the [trial c]ourt to re-evaluate or to evaluate not only the sentence that was given but also any new information that [the trial c]ourt might have in terms of imposing sentence.

At the conclusion of the re-sentencing hearing, the trial court imposed an aggregate sentence of 28 to 56 years' incarceration. Trial Court Order, 2/20/15 (noting that Fantauzzi's sentence was to run consecutively to all other sentences, and he was to be given credit for time served). On February 27, 2015, Fantauzzi filed a post-sentence motion requesting the trial court reconsider its judgment of sentence. The trial court subsequently denied Fantauzzi's post-sentence motion on March 2, 2015.

On appeal, this Court affirmed Fantauzzi's February 20, 2015 judgment of sentence. Fantauzzi, 2016 WL 1567073, at *1. Fantauzzi did not seek discretionary review by our Supreme Court.

On May 4, 2017, Fantauzzi filed pro se a PCRA petition asserting, inter alia, a claim of ineffective assistance of trial counsel and a claim asserting the imposition of a sentence greater than the lawful maximum. Fantauzzi's Pro Se PCRA Petition, 5/4/17, at ¶12; see also 42 Pa.C.S.A. § 9543(a)(2)(ii) and (vii). That same day, Fantauzzi also filed pro se a memorandum in support of his PCRA petition. The PCRA court appointed counsel to represent Fantauzzi. See PCRA Court Order, 5/16/17. Thereafter, Fantauzzi filed a petition requesting that he be permitted to proceed pro se in seeking collateral relief, which the PCRA subsequently granted after conducting a Grazier hearing. See Fantauzzi's Petition to Proceed Pro Se, 6/12/17; see also N.T., 8/4/17, at 9.

On September 11, 2017, Fantauzzi filed pro se an amended PCRA petition asserting numerous claims of ineffective assistance of counsel. See Fantauzzi's Pro Se Amended PCRA Petition, 9/11/17, at 6. On November 8, 2017, the PCRA court denied Fantauzzi's petition. On appeal, Fantauzzi raised claims of ineffective assistance of re-sentencing counsel for (1) failure to object to the trial court's reliance on an incorrect prior record score when it re-sentenced Fantauzzi, and (2) for failure to object to Fantauzzi being re-sentenced for criminal attempt to commit homicide that involved serious bodily injury in violation of Fantauzzi's constitutional rights. Commonwealth v. Fantauzzi, 2019 WL 2226115, at *3 (Pa. Super. Filed May 22, 2019) (unpublished memorandum). This Court found that the PCRA court erred as a matter of law when it "incorrectly reasoned Fantauzzi had either waived his ineffectiveness claims or previously litigated them in earlier proceedings." Id. at *5. Upon review, this Court found that,

the Commonwealth charged [Fantauzzi] with [criminal attempt to commit homicide] generally and did not include in the criminal complaint or information the element of serious bodily injury in relation to [this charge]. The Commonwealth also failed to put [Fantauzzi] on notice that the Commonwealth intended to prosecute and prove [criminal attempt to commit homicide involving serious bodily injury] at trial. The Commonwealth did not prosecute [Fantauzzi] for [criminal attempt to commit homicide involving serious bodily injury].

[Fantauzzi's] lack of notice and resultant inability to defend is apparent on the face of the record, and resentencing counsel should have brought this illegal sentence to the attention of the resentencing court [and] objected when the resentencing court re-imposed the enhanced sentence of 15 to 30 years' incarceration for attempted murder. Resentencing counsel had no rational basis for failing to raise a challenge to the illegal sentence, given the lack of notice. Further, resentencing counsel's failure to object at [the] resentencing [hearing] prejudiced [Fantauzzi], because it left [Fantauzzi] exposed to an enhanced maximum sentence for that offense, which he received in violation of [Apprendi v. New Jersey, 530 U.S. 466 (2000)], instead of the 20-year maximum for attempted murder generally. Thus, we conclude resentencing counsel was ineffective for failing to protect [Fantauzzi] from the illegal sentence enhancement he received for [criminal attempt to commit homicide involving] serious bodily injury.

On November 9, 2020, the trial court re-sentenced Fantauzzi to an aggregate 23 to 46 years' incarceration. Trial Court Order, 11/9/20 (ordering that Fantauzzi receive credit for time served and that his newly-imposed sentence was to run consecutively to any other sentence he was serving). On November 19, 2020, Fantauzzi filed a post-sentence motion to modify his sentence. That same day, the Commonwealth filed a motion to modify

Fantauzzi's sentence pursuant to Pa.R.Crim.P. 721 asserting that the trial court lacked jurisdiction to re-sentence Fantauzzi in February 2015 and, therefore, all subsequent matters in this case were null and void. See

Commonwealth's Motion to Modify Sentence, 11/19/20, at ¶10. Alternatively, the Commonwealth asserted that the trial court "misinterpreted the directions of [this Court upon remand] by only adjusting the sentence for one of the counts" so the sentence no longer included an upward enhancement for serious bodily injury under Section 1102(c). Id. at ¶11. On January 28, 2021, the trial court denied Fantauzzi's post-sentence motion and denied the Commonwealth's motion to modify the sentence.

On March 1, 2021, both the Commonwealth and Fantauzzi appealed from the November 9, 2020 judgment of sentence as made final by the January 28, 2021 order denying their respective motions. The trial court ordered both the Commonwealth and Fantauzzi to file concise statements of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Fantauzzi filed his Rule 1925(b) statement on March 15, 2021. The Commonwealth filed its Rule 1925(b) statement on March 18, 2021. On April 5, 2021, the trial court filed its Rule 1925(a) opinion relying on its January 28, 2021 opinion and order, which denied Fantauzzi's post-sentence motion and denied the Commonwealth's motion to modify Fantauzzi's sentence.

The Commonwealth raises the following issues for our review:

1. Did the [trial] court err in finding that it had jurisdiction to resentence [Fantauzzi]?

2. In the alternative, did the [trial] court err by misconstruing the remand directive from [this] Court?

Fantauzzi raises the following issues for our review:

[1.] Whether the trial court committed an abuse of discretion in imposing an aggregate sentence which was clearly unreasonable in light of the nature and circumstances of the offense?

[2.] Whether the trial court erred in denying the motion for extraordinary relief? Fantauzzi's Brief (503 EDA 2021) at 4 (extraneous capitalization omitted).

The Commonwealth's first issue - that the trial court lacked subject matter jurisdiction to re-sentence Fantauzzi on February 20, 2015, and November 9, 2020 - raises a pure question of law and is not waivable. Commonwealth v. Salley, 957 A.2d 320, 322 (Pa. Super. 2008) (stating that, a challenge to a trial court's lack of subject matter jurisdiction to resentence a defendant raises a question of law). When examining a question of law, our scope of review is de novo, and our standard of review is plenary. Commonwealth v. Hemingway, 13 A.3d 491, 496 (Pa. Super. 2011) (stating that, "[t]he existence of subject matter jurisdiction goes to the heart of a court's ability to act in a particular case" and a challenge to subject matter jurisdiction "is not waivable, even by consent, and may be raised by any party or by the court, sua sponte, at any stage of the proceeding").

Here, the Commonwealth asserts that the genesis of Fantauzzi's November 9, 2020 judgment of sentence was Fantauzzi's petition for writ of habeas corpus filed on July 3, 2014, that resulted in a series of judicial events as follows: (1) the grant of collateral relief in the form of a new sentencing proceeding and Fantauzzi's February 20, 2015 judgment of sentence; (2) the subsequent filing of a PCRA petition raising an ineffective assistance of re-sentencing counsel claim; (3) the November 8, 2017 order denying Fantauzzi collateral relief; (4) this Court's May 22, 2019 decision remanding the matter to the trial court for a new sentencing proceeding; (5) the November 9, 2020 judgment of sentence; and (6) the instant appeal. Commonwealth's Brief (502 EDA 2021) at 13. The Commonwealth contends that the PCRA court properly treated Fantauzzi's July 3, 2014 petition for writ of habeas corpus as a PCRA petition, initially, but failed to recognize that, as a PCRA petition, it was untimely and without an exception to the jurisdictional time-bar. Id. at 13-17. As such, the Commonwealth argues that the PCRA court lacked jurisdiction over the untimely PCRA petition and was unable to grant relief in the form of a new sentencing proceeding. Id. at 17. The Commonwealth asserts that because the PCRA court lacked jurisdiction over the untimely PCRA petition, the subsequent February 20, 2015 judgment of sentence, and all matters which followed, including the November 9, 2020 judgment of sentence, were null and void ab initio. Id. at 19.

The Commonwealth's jurisdictional argument pertaining to the untimeliness of a PCRA petition that is not the basis of the instant appeal but, rather, appears in the procedural history of the case appears to be an issue of first impression. It is well-established that the timeliness of a PCRA petition is jurisdictional and that if the petition is untimely, courts lack jurisdiction over the petition and cannot grant relief. Commonwealth v. Wharton, 886 A.2d 1120, 1124 (Pa. 2005); see also Commonwealth v. Callahan, 101 A.3d 118, 121 (Pa. Super. 2014) (holding, courts do not have jurisdiction over an untimely PCRA petition). "[T]he PCRA is intended to be the sole means of achieving post-conviction [collateral] relief." Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa. Super. 2013). If an issue is cognizable under the PCRA, the issue must be raised in a timely PCRA petition and cannot be raised in a petition for writ of habeas corpus. Id. at 465-466 (stating that, "[u]nless the PCRA could not provide for a potential remedy, the PCRA statute subsumes the writ of habeas corpus" (citation omitted)). In other words, "a defendant cannot escape the PCRA time-bar by titling his petition or motion as a writ of habeas corpus." Id. at 466. Moreover, regardless of how a petition is titled, courts are to treat a petition filed after a judgment of sentence becomes final as a PCRA petition if it requests relief contemplated by the PCRA. Commonwealth v. Wrecks, 934 A.2d 1287, 1289 (Pa. Super. 2007); see also Commonwealth v. Torres, 223 A.3d 715, 716 (Pa. Super. 2019) (stating, "so long as a pleading falls within the ambit of the PCRA, the court should treat any pleading filed after the judgment of sentence is final as a PCRA petition" (citation omitted)); Commonwealth v. Hromek, 232 A.3d 881, 884 (Pa. Super. 2020) (affirming the Wrecks' holding that regardless of how a filing is titled, a petition should be treated as filed under the PCRA if it is filed after the judgment of sentence becomes final and seeks relief provided under the PCRA). This Court in Taylor, supra, held that a petition challenging the legality of sentence on the grounds the sentence exceeded the statutory limit was "undoubtedly cognizable under the PCRA" and, therefore, any such petition regardless of its title was to be treated as a PCRA petition. Taylor, 65 A.3d at 467; see also 42 Pa.C.S.A. § 9543(a)(2)(vii) (stating that, to be eligible for relief under the PCRA, the petitioner must plead and prove by a preponderance of the evidence that the sentence resulted from the "imposition of a sentence greater than the lawful maximum").

Here, the record demonstrates that the trial court imposed an aggregate sentence of 28 to 56 years' incarceration on September 14, 2006. This Court affirmed Fantauzzi's judgment of sentence on August 15, 2007, and our Supreme Court denied Fantauzzi's petition for allowance of appeal on December 24, 2007. See Fantauzzi, 935 A.2d at 10; see also Fantauzzi, 940 A.2d at 362. Fantauzzi did not seek discretionary review before the Supreme Court of the United States. Consequently, Fantauzzi's judgment of sentence became final on March 24, 2008, 90 days after the expiration of the time in which to seek discretionary review with the Supreme Court of the United States. U.S. Sup. Ct. R 13(1) (stating, "A petition for a writ of certiorari seeking review of a judgment of a lower state court that is subject to discretionary review by the state court of last resort is timely when it is filed with the Clerk within 90 days after entry of the order denying discretionary review."); see also 42 Pa.C.S.A. § 9545(b)(3) (stating, "a judgment 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 review").

Here, a review of Fantauzzi's July 3, 2014 petition for writ of habeas corpus demonstrates that Fantauzzi asserted his sentence was illegal because the trial court imposed mandatory minimum sentences pursuant to 42 Pa.C.S.A. § 9712, which was subsequently declared unconstitutional by Alleyne, supra, and Valentine, supra. See Fantauzzi's Pro Se Petition for Writ of Habeas Corpus, 7/3/14, at ¶¶4-5; see also Fantauzzi's Pro Se Brief in Support, 7/3/14, at 2 (stating, Fantauzzi's "claim concerns an unlawful mandatory minimum sentence[] and a new constitutional rule"). In his brief, Fantauzzi acknowledged that Alleyne, supra, does not apply retroactively to requests for post-conviction collateral relief, and he argued that, as such, he should be permitted to proceed with his petition for writ of habeas corpus. Fantauzzi's Pro Se Brief in Support, 7/3/14, at 3. After appointment of counsel, Fantauzzi's counsel filed a motion to correct Fantauzzi's illegal sentence and a nunc pro tunc motion to modify sentence asserting a claim that mirrored the claim asserted in Fantauzzi's pro se petition for writ of habeas corpus, namely that the trial court imposed mandatory minimum sentences pursuant to 42 Pa.C.S.A. § 9712, which was subsequently declared unconstitutional. See Fantauzzi's Motion to Correct Illegal Sentence and Nunc Pro Tunc Motion to Modify Sentence, 11/12/14.

Fantauzzi's July 3, 2014 petition for writ of habeas corpus sets forth a claim that his aggregate sentence of 28 to 56 years' incarceration resulted from the imposition of a sentence greater than the lawful maximum because the trial court imposed mandatory minimum sentences under Section 9712. Therefore, because Fantauzzi's claim of an illegal sentence, and the relief requested, are contemplated under the PCRA, the PCRA was the sole means of relief in this instance. Taylor, 65 A.3d at 465-466. As such, the PCRA court was required to treat Fantauzzi's petition for writ of habeas corpus as a PCRA petition. Wrecks, 934 A.2d at 1289. Counsel's subsequent filing of a motion to correct the illegal sentence, which raised a claim of an illegal sentence and requested relief contemplated under the PCRA, was also required to be treated as a PCRA petition, and, specifically, in the case sub judice, treated as an amended PCRA petition. Id.

Fantauzzi's judgment of sentence became final on March 24, 2008. Therefore, Fantauzzi's petition for writ of habeas corpus (PCRA petition) filed on July 3, 2014, more than six years after his judgment of sentence became final, was patently untimely.

If a PCRA petition is untimely filed, the jurisdictional time-bar can only be overcome if the petitioner alleges and proves one of the three statutory exceptions, as set forth in 42 Pa.C.S.A. § 9545(b)(1). Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017). The three narrow statutory exceptions to the one-year time-bar are as follows: "(1) interference by government officials in the presentation of the claim; (2) newly[-]discovered facts; and (3) an after-recognized constitutional right." Commonwealth v. Brandon, 51 A.3d 231, 233-234 (Pa. Super. 2012), citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii). A petition invoking an exception to the jurisdictional time-bar must be filed within 60 days of the date that the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2) (effective November 17, 1995, to December 24, 2018). If a petitioner fails to invoke a valid exception to the PCRA time-bar, courts are without jurisdiction to review the petition and provide relief. Spotz, 171 A.3d at 676.

Here, Fantauzzi, relying on Alleyne, supra, and its progeny, purported to invoke the after-recognized constitutional right that any fact that increases the mandatory minimum sentence of a crime is an element of that crime and must be submitted to the fact-finder and found beyond a reasonable doubt. See Fantauzzi's Pro Se Brief in Support, 7/3/14, at 1 (stating, "[Fantauzzi's] claims are that he is entitled to relief from a new constitutional rule of law"); see also Fantauzzi's Pro Se Petition for Writ of Habeas Corpus, 7/3/14; Fantauzzi's Motion to Correct Illegal Sentence and Nunc Pro Tunc Motion to Modify Sentence, 11/12/14. It is well-established, however, that the decision announced in Alleyne, supra, does not apply retroactively on collateral review where the judgment of sentence became final prior to the announcement of the Alleyne decision on June 17, 2013. Commonwealth v. Ramos, 241 A.3d 445, at *5 (Pa. Super. Filed October 19, 2020) (slip opinion), relying on, Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016), appeal denied, 252 A.3d 1090 (Pa. 2021); see also Commonwealth v. DiMatteo, 177 A.3d 182, 192 (Pa. 2018) (stating that, "Alleyne does not apply to cases where the judgment of sentence was final prior to Alleyne"). Moreover, because the decision announced in Alleyne, supra, does not apply retroactively on collateral review, a petitioner cannot rely on Alleyne to invoke the after-recognized constitutional right exception to the PCRA jurisdictional time-bar. Ramos, 241 A.3d at *5. Therefore, Fantauzzi, in the case sub judice, may not rely on Alleyne, and its progeny, to invoke an exception to the jurisdictional time-bar because his judgment of sentence was made final prior to the decision announced in Alleyne, supra, and Alleyne does not apply retroactively. Consequently, in requesting collateral relief via his July 13, 2014 submission, Fantauzzi failed to invoke a valid exception to the PCRA jurisdictional time-bar pursuant to 42 Pa.C.S.A. § 9545(b)(1)(iii).

Because Fantauzzi's July 3 2014 PCRA petition, as amended, was untimely and without exception, the PCRA court did not have jurisdiction to grant Fantauzzi collateral relief in the form of a new sentencing proceeding that, ultimately, resulted in Fantauzzi's February 20 2015 judgment of sentence. Therefore, the PCRA court's order granting Fantauzzi a new sentencing proceeding and Fantauzzi's subsequent February 20, 2015 judgment of sentence were null and void ab initio because the PCRA court did not have jurisdiction to grant relief. It follows that Fantauzzi's February 20, 2015 judgment of sentence was a legal nullity and Fantauzzi could not appeal from that determination. Moreover, the judicial decisions and orders granting, or denying, subsequent relief that flowed from the February 20, 2015 judgment of sentence are also null and void ab initio. As such, the trial court was without jurisdiction to resentence Fantauzzi on November 9, 2020, and Fantauzzi's November 9, 2020 judgment of sentence is null and void ab initio. Accordingly, we vacate the judgment of sentence entered on November 9, 2020, and remand this matter for re-imposition of the original sentence imposed by the trial court on September 14, 2006, and affirmed by this Court on August 15, 2007. See Commonwealth v. Ciccone, 152 A.3d 1004 (Pa. Super. 2016) (en banc) (affirming an order denying collateral relief despite an underlying legality of sentence claim pursuant to Alleyne, supra, where the judgment of sentence became final prior to the decision announced in Alleyne, supra, and the PCRA petition was untimely and without exception), appeal denied, 169 A.3d 564 (Pa. 2017).

Judgment of sentence vacated. Case remanded with instructions. Jurisdiction relinquished.

Judgment Entered.