J-S03043-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                   Appellee              :
                                         :
                   v.                    :
                                         :
RICHARD J. GRIFFITHS,                    :
                                         :
                    Appellant            :    No. 1410 WDA 2016

         Appeal from the PCRA Order Entered September 16, 2016,
               in the Court of Common Pleas of Erie County,
           Criminal Division at No(s): CP-25-CR-0002122-1998

BEFORE: OLSON, SOLANO, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:               FILED FEBRUARY 27, 2017

     Richard J. Griffiths (Appellant) appeals pro se from the order

dismissing his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

     In 1998, Appellant pled guilty to various crimes including four counts

of involuntary deviate sexual intercourse (IDSI). Appellant was sentenced to

an aggregate term of 33 to 66 years of imprisonment to be followed by ten

years of probation. His sentence included a mandatory minimum sentence

for each count of IDSI pursuant to 42 Pa.C.S. § 9718.     This Court denied

Appellant relief on direct appeal, and his judgment of sentence became final

in 2000 after our Supreme Court denied his petition for allowance of appeal.




* Retired Senior Judge assigned to the Superior Court.
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Commonwealth v. Griffiths, 750 A.2d 368 (Pa. Super. 1999) (unpublished

memorandum), appeal denied, 761 A.2d 548 (Pa. 2000).

        Appellant filed his first PCRA petition in 2001. The PCRA court denied

his petition because it was untimely filed. Appellant did not file an appeal.

In 2015, Appellant pro se filed a “Post-Sentence Motion ‘Nunc Pro Tunc,’”

which the PCRA court treated as a PCRA petition.            The PCRA court denied

this petition because it too was untimely filed.            On appeal, this Court

affirmed. Commonwealth v. Griffiths, 136 A.3d 1026 (Pa. Super. 2016)

(unpublished memorandum).

        Appellant pro se filed the instant PCRA petition, his third, on July 29,

2016.       Therein,   he   alleged   his   sentence   is     illegal   pursuant    to

Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016) (holding 42 Pa.C.S.

§ 9718, the statute that provided a mandatory minimum sentence for IDSI,

is unconstitutional under Alleyne v. United States, 133 S.Ct. 2151

(2013)).1 PCRA Petition, 7/29/2016, at 4. Appellant alleged the filing of his

petition    was    timely    based    on     the   newly-discovered-facts          and

new-constitutional-right exceptions to the PCRA time-bar, 42 Pa.C.S.


1
  Appellant also requested the appointment of counsel. It does not appear
that the PCRA court addressed his request or appointed counsel for him.
Appellant reiterates his request in his brief to this Court. We observe that
counsel shall be appointed “[o]n a second or subsequent petition[] when an
unrepresented defendant satisfies the judge that the defendant is unable to
afford or otherwise procure counsel, and an evidentiary hearing is required.”
Pa.R.Crim.P. 904(D) (emphasis added). Because no hearing was necessary,
Appellant is not entitled to the appointment of counsel herein.

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§ 9545(b)(1)(ii) and (iii). PCRA Petition, 7/29/2016, at 3. Specifically, with

respect to Section 9545(b)(1)(ii), he asserts his discovery of Wolfe is a

newly discovered fact.    Id.   With respect to Section 9545(b)(1)(iii), he

asserts our Supreme Court recognized a constitutional right, citing to

Commonwealth v. Muhammed, 992 A.2d 897 (Pa. Super. 2010). Id.

      On August 10, 2016, the PCRA court issued notice of its intent to

dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907 on the

basis that the petition was untimely filed and the court lacked jurisdiction to

consider it.   Appellant filed a response, and on September 16, 2016, the

PCRA court dismissed the petition. This appeal followed.

      Before we can examine Appellant’s substantive claims, we must

determine whether the filing of his PCRA petition was timely.       See, e.g.,

Commonwealth v. Lewis, 63 A.3d 1274, 1280-81 (Pa. Super. 2013)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)) (“‘[I]f

a PCRA petition is untimely, neither this Court nor the [PCRA] court has

jurisdiction over the petition. Without jurisdiction, we simply do not have the

legal authority to address the substantive claims.’”).

      Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

of sentence is final unless the petition alleges, and the petitioner proves,

that a timeliness exception is met, and raises that claim within 60 days of

the date on which it became available. 42 Pa.C.S. § 9545(b)(1) and (2).


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      Appellant filed the 2016 petition more than a decade after his

judgment of sentence became final. Thus, the petition is facially untimely,

and the PCRA court had no jurisdiction to entertain Appellant’s petition

unless he pled and offered proof of one or more of the three statutory

exceptions to the time-bar. 42 Pa.C.S. § 9545(b)(1).

      Although Appellant raised exceptions in his petition, he makes no

argument in his brief to support his claim that any of the exceptions applies.

Appellant appears to assert his petition is timely because his sentence is

illegal pursuant to Alleyne and its progeny. However, our Supreme Court

has held that Alleyne does not apply retroactively to cases on collateral

review. Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016).

      Because Appellant’s PCRA petition was untimely filed and Appellant

was unable to plead and prove an exception to the time-bar, the PCRA court

properly dismissed Appellant’s petition for lack of jurisdiction. Accordingly,

we affirm the PCRA court’s September 16, 2016 order.

            Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/27/2017




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