J-S50028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BRYNN WAYNE GRIFFIN                        :
                                               :
                       Appellant               :   No. 219 WDA 2018

                  Appeal from the PCRA Order January 8, 2018
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0009985-1996


BEFORE: BOWES, J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY OTT, J.:                               FILED OCTOBER 30, 2018

        Brynn Wayne Griffin appeals from the order entered January 8, 2018,

in the Allegheny County Court of Common Pleas, denying his motion for a new

trial and arrest of judgment, which the court construed to be a serial petition

for collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9451-9546. Griffin seeks relief from the judgment of sentence

of an aggregate six to 20 years’ imprisonment, followed by eight years’

probation, imposed August 20, 1998, after his non-jury conviction of

involuntary deviate sexual intercourse, sexual assault, and aggravated

indecent assault1 for the July 1995 sexual assault of his then fiancée’s sister.

On appeal, Griffin contends the PCRA court erred in dismissing his petition as


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1   See 18 Pa.C.S. §§3123, 3124, and 3125, respectively.
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untimely filed when it lacked jurisdiction to try him on felony charges without

a jury. We affirm.

       The facts and procedural history underlying this appeal are well-known

to the parties, and have been summarized in several prior appeals before this

Court.2 Therefore, we need not recite them herein. In summary, Griffin’s

judgment of sentence became final on November 6, 2003, ninety days after

the Pennsylvania Supreme Court denied his petition for review of his direct

appeal, and the time for filing a writ of certiorari in the United States Supreme

Court expired. See Commonwealth v. Griffin, 158 A.3d 168 (Pa. Super.

2016) (unpublished memorandum at *2), appeal denied, 168 A.3d 1241 (Pa.

2017).

       On November 17, 2017, Griffin filed the present motion, pro se, in which

he sought a new trial and arrest of judgment based upon his assertion that

the trial court had no authority to try him on felony charges without a jury.

The PCRA court construed the motion to be Griffin’s fifth PCRA petition, and,
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2  See Commonwealth v. Griffin, 809 A.2d 957 (Pa. Super. 2002)
(unpublished memorandum) (affirming judgment of sentence on direct
appeal), appeal denied, 829 A.2d 1156 (Pa. 2003); Commonwealth v.
Griffin, 959 A.2d 460 (Pa. Super. 2008) (unpublished memorandum)
(affirming denial of first PCRA petition), appeal denied, 964 A.2d 894 (Pa.
2009); Commonwealth v. Griffin, 15 A.3d 523 (Pa. Super. 2010)
(unpublished memorandum) (affirming denial of second PCRA petition as
untimely filed); Commonwealth v. Griffin, 83 A.3d 1067 (Pa. Super. 2013)
(unpublished memorandum) (affirming denial of third PCRA petition as
untimely filed); Commonwealth v. Griffin, 158 A.3d 168 (Pa. Super. 2016)
(unpublished memorandum) (affirming denial of fourth PCRA petition as
untimely filed), appeal denied, 168 A.3d 1241 (Pa. 2017).



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on December 15, 2017, issued notice of its intent to dismiss the petition

without first conducting an evidentiary hearing.        See Pa.R.Crim.P. 907.

Although Griffin filed a pro se response on January 5, 2018, the PCRA court

dismissed the petition as untimely filed on January 8, 2018.         This appeal

followed.3

       On appeal, Griffin contends the PCRA court erred in dismissing his

petition as untimely filed. He argues the trial court lacked “jurisdiction and/or

authority to try [him], on a plea of not guilty, of indictable offenses without a

jury.” Griffin’s Brief at 8. Moreover, because the resulting “unconstitutional

conviction” is a “legal nullity,” Griffin insists his petition is not time-barred.

Id. at 14.

       “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)

(internal punctuation and citation omitted). Here, the PCRA court concluded

Griffin’s petition was untimely filed, and Griffin failed to establish the

applicability of one of the time-for-filing exceptions. See PCRA Court Opinion,

2/7/2018, at 1-2.

       The requirement that a PCRA petition must be filed within one year of

the date the underlying judgment becomes final “is mandatory and

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3 The PCRA court did not order Griffin to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).


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jurisdictional in nature.” Commonwealth v. Taylor, 67 A.3d 1245, 1248

(Pa. 2013), cert. denied, 134 S.Ct. 2695 (U.S. 2014).        “The court cannot

ignore a petition’s untimeliness and reach the merits of the petition.” Id.

       As noted above, a prior panel of this Court has already determined

Griffin’s judgment of sentence was final on November 6, 2003, and, therefore,

he had until November 6, 2004, to file a timely petition. See Griffin, supra,

158 A.3d 168 (Pa. Super. 2016) (unpublished memorandum at *2).

Accordingly, the one before us, filed more than 13 years later, is patently

untimely.

       Nevertheless, an untimely PCRA petition may still be considered if “the

petition alleges and the petition proves” one of the three time-for-filing

exceptions set forth at in Subsection 9545(b)(1). 4         See 42 Pa.C.S. §

9545(b)(1)(i)-(iii). A PCRA petition alleging any of those exceptions must be

filed within 60 days of when the PCRA claim could have first been brought. 42

Pa.C.S. § 9545(b)(2).

       Here, Griffin did not assert any of the statutory timing exceptions in his

motion. Nor does he allege the applicability of an exception in his appellate


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4 The time-for-filing exceptions set forth in Section 9545(b) include: (1) the
failure to raise the claim previously resulted from interference by government
officials (2) the facts underlying the claim were previously unknown to the
petitioner, and could not have been ascertained by the exercise of due
diligence; or (3) the right asserted is a newly recognized constitutional right.
42 Pa.C.S. § 9545(b)(1)(i)-(iii).



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brief. Rather, he simply contends his “conviction is a legal nullity and cannot

be considered procedurally barred, and/or time barred.” Griffin’s Brief at 14.

However, Griffin ignores the fact that the timeliness of a petition is

jurisdictional – regardless of the issues raised – and a court may not ignore

the untimeliness of a petition in order to address the claims raised therein.

Taylor, supra, 67 A.3d at 1248. See also Commonwealth v. Peterkin,

722 A.2d 638, 642 (Pa. 1998) (“It is axiomatic that no constitutional rights

are absolute. All rights are subject to reasonable restrictions.”).

       Accordingly, we find the PCRA court properly dismissed Griffin’s petition

as untimely filed.5

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/30/2018




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5 We note, too, that Griffin’s underlying claim – that the trial court lacked
jurisdiction to try him for a felony offense without a jury – is patently
meritless. See Commonwealth v. Kramer, 22 A.2d 46, 52 (Pa. Super.
1941) (holding the right to a trial by jury is not so fundamental that “public
policy will not allow [a defendant] to waive it.”); Pa.R.Crim.P. 620.

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