J-S13015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

MARIO L. GRIFFIN,

                            Appellant                  No. 2366 EDA 2016

              Appeal from the PCRA Order Entered June 21, 2016
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0004527-2004


BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED MARCH 29, 2017

        Appellant, Mario L. Griffin, appeals pro se from the post-conviction

court’s June 21, 2016 order denying, as untimely, his second petition filed

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We

affirm.

        The PCRA court summarized the facts and procedural history of

Appellant’s case as follows:

               After a jury trial, Appellant was found guilty of attempted
        murder, aggravated assault, and simple assault.          The facts
        surrounding these verdicts were that Appellant had brutally
        stabbed and beat his step-mother, and assaulted another
        individual who tried to intervene. On July 25, 2005, Appellant
        was sentenced by the Honorable Frank T. Hazel to an aggregate
        term of sixteen to forty-two years in a state correctional facility.
        Appellant filed [a] timely direct appeal to the Pennsylvania
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*
    Former Justice specially assigned to the Superior Court.
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     Superior Court, which affirmed the judgment of sentence on
     April 13, 2006. [See Commonwealth v. Griffin, 902 A.2d 977
     (Pa. Super. 2006) (unpublished memorandum).] On January 9,
     2007, the Pennsylvania Supreme Court denied Appellant’s
     Petition for Allowance of Appeal. [See Commonwealth v.
     Griffin, 916 A.2d 631 (Pa. 2007).]

            On January 9, 2008, Appellant filed his first pro se PCRA
     petition. Counsel was appointed and filed a “no merit” letter and
     petition to withdraw on February 22, 2008.                  [See
     Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
     Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).]
     The PCRA [c]ourt issued a notice of intent to dismiss without a
     hearing on March 25, 2008, to which Appellant responded … on
     April 24, 2008. The petition was ultimately dismissed on May 9,
     2008. On June 5, 2008, Appellant appealed the dismissal of his
     first PCRA petition to the Superior Court, which affirmed the
     dismissal, and the Pennsylvania Supreme Court denied a petition
     for [allowance of] appeal on September 22, 2009.            [See
     Commonwealth v. Griffin, 972 A.2d 552 (Pa. Super. 2009)
     (unpublished memorandum), appeal denied, 980 A.2d 605 (Pa.
     2009).]

           On April 1, 2016, Appellant filed his second PCRA petition.
     On May 20, 2016, this [c]ourt issued a [Pa.R.Crim.P. 907] notice
     of intent to dismiss [the petition] without a hearing, to which
     Appellant responded on June 10, 2016. On June 21, 2016, this
     [c]ourt dismissed the petition on the grounds that the petition
     was untimely, and did not fit any of the time[-]bar exceptions.
     On July 20, 2016, Appellant appealed to the Pennsylvania
     Superior Court.

PCRA Court Opinion, 10/17/16, at 1-2 (footnotes omitted).

     It does not appear that the PCRA court issued an order directing

Appellant to file a Pa.R.A.P. 1925(b) statement. Notwithstanding, Appellant

filed a pro se motion for an extension of time within which to file a concise

statement in August of 2016.     On August 29, 2016, the court issued an

order granting that motion and directing that Appellant file his Rule 1925(b)

statement within 45 days. The record indicates that Appellant ultimately did


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not file a Rule 1925(b) statement.1 On October 18, 2016, the PCRA court

issued a Rule 1925(a) opinion, addressing the claims Appellant raised in his

pro se petition.

       Appellant thereafter filed a pro se brief with this Court, presenting the

following,      verbatim       issue     for     our   review:     “The   Criminal

Information/Indictment deprived the Court of subject matter jurisdiction, Ab

Initio And the conviction is void; per Pa. R. App. Proc. 2119(b) and the

admission of inadmissible evidence constituting jeopardy under Smith?”

Appellant’s Brief at III.

       This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.            Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the
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1
  We will not deem the claim Appellant raises herein waived, even though he
failed to file a Rule 1925(b) statement. The court did not initially issue an
order directing Appellant to file a concise statement and, in the order
granting Appellant’s motion for an extension of time, the court did not
inform him that a failure to file a Rule 1925(b) statement would result in
waiver of his claims on appeal. See Pa.R.A.P. 1925(b)(3)(iv) (requiring the
Rule 1925(b) order to inform the appellant “that any issue not properly
included in the Statement timely filed and served … shall be deemed
waived”). Consequently, because the court’s order did not comply with the
requirements of Rule 1925(b), we will not consider Appellant’s issue waived
for our review. See Greater Erie Indus. Development Corp. v. Presque
Isle Downs, Inc., 88 A.3d 222, 225 (Pa. Super. 2014) (holding that in
finding waiver based on non-compliance with Rule 1925(b), it is the court’s
order that triggers the appellant’s obligation).




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timeliness of Appellant’s petition, because the PCRA time limitations

implicate our jurisdiction and may not be altered or disregarded in order to

address the merits of a petition.    Commonwealth v. Bennett, 930 A.2d

1264, 1267 (Pa. 2007).     Under the PCRA, any petition for post-conviction

relief, including a second or subsequent one, must be filed within one year of

the date the judgment of sentence becomes final, unless one of the following

exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (b) Time for filing petition.--

         (1) Any petition under this subchapter, including a second
         or subsequent petition, shall be filed within one year of the
         date the judgment becomes final, unless the petition
         alleges and the petitioner proves that:

            (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).   Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).




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      Here, Appellant’s judgment of sentence became final on April 9, 2007,

90 days after our Supreme Court denied his petition for permission to

appeal. See 42 Pa.C.S. § 9545(b)(3) (stating that a judgment of sentence

becomes final at the conclusion of direct review or the expiration of the time

for seeking the review); Commonwealth v. Owens, 718 A.2d 330, 331

(Pa. Super. 1998) (directing that under the PCRA, petitioner’s judgment of

sentence becomes final ninety days after our Supreme Court rejects his or

her petition for allowance of appeal since petitioner had ninety additional

days to seek review with the United States Supreme Court). Consequently,

Appellant’s present, pro se petition, filed on April 1, 2016, is patently

untimely and, for this Court to have jurisdiction to review the merits thereof,

Appellant must prove that he meets one of the exceptions to the timeliness

requirements set forth in 42 Pa.C.S. § 9545(b).

      Appellant wholly fails to meet this burden.      In his appellate brief,

Appellant contends that the trial court lacked jurisdiction over his case

because the criminal information was ostensibly defective and, as a result,

his sentence is illegal. Our Supreme Court has held that a claim challenging

the legality of sentence must first satisfy the PCRA’s time limits to be

reviewed under the scope of the PCRA. See Commonwealth v. Fahy, 737

A.2d 214, 223 (Pa. 1999).      Appellant does not explain which timeliness

exception his argument meets, and we cannot ascertain how his claim could

satisfy any subpart of section 9545(b).     We also point out that Appellant

cannot prove that he raised his challenge to the trial court’s jurisdiction and

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the legality of his sentence within 60 days of when he could have first done

so. Accordingly, the PCRA court did not err in denying Appellant’s untimely

petition.2

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/29/2017
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2
   We note that Appellant presented different challenges to the legality of his
sentence in his pro se petition, contending that his sentence is illegal under
Alleyne v. United States, 133 S.Ct. 2151, 2163 (2013) (holding that “facts
that increase mandatory minimum sentences must be submitted to the jury”
and found beyond a reasonable doubt), and/or Miller v. Alabama, 132
S.Ct. 2455, 2469 (2012) (holding that “the Eighth Amendment forbids a
sentencing scheme that mandates life in prison without possibility of parole
for juvenile offenders”). While Appellant abandons these specific claims on
appeal, we note that neither of them would satisfy a timeliness exception in
this case. First, our Supreme Court has held that Alleyne does not apply
retroactively to cases on collateral review.        See Commonwealth v.
Washington, 142 A.3d 810, 820 (Pa. 2016). In any event, Alleyne would
not apply in this case because Appellant was not sentenced to a mandatory
minimum term of incarceration.           Second, while Miller does apply
retroactively to cases on collateral review, see Montgomery v. Louisiana,
136 S.Ct. 718 (2016), Appellant was not sentenced to a mandatory term of
life without the possibility of parole, and he also was not a juvenile at the
time he committed his offenses. See PCRA Court Opinion, 10/18/16, at 4.
Accordingly, we agree with the PCRA court that the claims presented by
Appellant in his pro se petition cannot overcome the PCRA’s jurisdictional
time-bar. See id. at 3-4.




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