J-S62011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JUSTINO GRIGGS                             :
                                               :
                        Appellant              :   No. 3145 EDA 2017

                  Appeal from the PCRA Order August 25, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0001962-2010


BEFORE: LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                            FILED OCTOBER 15, 2018

        Justino Griggs appeals, pro se, from the trial court’s order dismissing

his Post Conviction Relief Act (PCRA) petition1 as untimely. We affirm.

        On August 15, 2011, Griggs entered a negotiated guilty plea to robbery

(F-1),2 burglary (F-1),3 conspiracy,4 possession of an instrument of crime




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1   42 Pa.C.S. §§ 9541-9546.

2   18 Pa.C.S § 3701(a)(1)(ii).

3   18 Pa.C.S. § 3502(a).

4   18 Pa.C.S. § 903.
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(PIC),5 aggravated assault (F-1),6 and various firearm offenses.7 Griggs was

sentenced to three concurrent terms of 10-20 years’ incarceration8 for the

aggravated     assault,    robbery,    conspiracy   and   burglary   convictions,   a

consecutive sentence of 5-10 years’ imprisonment for possession of a

prohibited firearm, and a sentence of 3½-7 years’ imprisonment for firearms

carried without a license which was to run concurrent with the other firearm

sentence. In total, Griggs was ordered to serve 15-30 years in prison. Griggs

did not file post-sentence motions or a direct appeal. On March 29, 2012,

Griggs filed a pro se PCRA petition; counsel was appointed and filed a “no

merit”9 letter. The court dismissed Griggs’ petition on August 9, 2013, and

permitted counsel to withdraw. Griggs filed a pro se appeal and our Court

affirmed the PCRA court’s order on June 24, 2014.

        Griggs filed the instant pro se PCRA petition, his second, on January 6,

2017, and an amended pro se petition on March 9, 2017. On July 25, 2017,

the trial court issued Pa.R.Crim.P. 907 notice of intent to dismiss Griggs’

petition. On August 25, 2017, the court formally dismissed Griggs’ petition.

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5   18 Pa.C.S. § 907(a).

6   18 Pa.C.S § 2702(a).

7 18 Pa.C.S. § 6105(a)(1) (possession of firearm prohibited); 18 Pa.C.S. §
6106(a)(1) (firearms not to be carried without license).

8   See 42 Pa.C.S.A. § 9714, infra at 5-6.

9 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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Griggs filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal.          On appeal, Griggs

presents the following issues for our consideration:

       (1)    Whether the Trial Court erred in finding that [Griggs’] guilty
              plea was entered in voluntarily, knowingly, and intelligently
              in light of the statutory interpretation in Commonwealth
              V. Hopkins, 98 MAP 2013 premised upon Alleyne v.
              United States, 133 S. Ct. 2151 (2013)?

       (2)    Whether [Griggs’] sentence is illegal and subject to
              correction mandated by [the] PCRA provisions as such
              challenge was asserted in a timely PCRA?

       (3)    In Alleyne v. United States[,] 133 S. Ct. 2151 (2013)[,]10
              [was it decided] that this is “New Law” or did the U.S.
              Supreme Court interpret the relevant law for the first time
              and ma[k]e it clear what the “General Assembly’s” original
              intent was in legislating [the c]onstitutionality of Section
              9712 and similar Pennsylvania mandatory minimum
              statutes?

Appellant’s Brief, at 4.

       On appeal from the denial of PCRA relief, this court must determine

whether the post-conviction court’s findings were supported by the record and

whether the court’s order is otherwise free of legal error. Commonwealth

v. Blackwell, 647 A.2d 915 (Pa. Super. 1994). The findings of the post-

conviction court will not be disturbed unless they have no support in the

record. Id.



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10In Alleyne, the United States Supreme Court held that, under the Sixth
Amendment to the United States Constitution, U.S. Const. amend. VI, a jury
must find beyond a reasonable doubt any facts that increase a mandatory
minimum sentence.

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   Any petition filed under the PCRA must be filed within one year of the date

the underlying judgment becomes final.       42 Pa.C.S.A. § 9545(b)(1).   For

purposes of determining when a petitioner’s judgment becomes final under

section 9545(b)(1), the PCRA states that “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.” 42 Pa.C.S.A. § 9545 (b)(3). In

three instances, courts will not hold PCRA petitioners to the strict one-year

filing time frame. A PCRA petition may be filed within 60 days from the date

the claim could have been presented when the petition alleges and the

petitioner proves that:

            (1) 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;

            (2) 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

            (3) 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.A. §§ 9545(b)(1)(i), (ii), & (iii). A petitioner has the burden to

plead and prove these exceptions. Commonwealth v. Pursell, 749 A.2d 911,

914 (Pa. 2000).



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       Instantly, Griggs was sentenced on August 15, 2011; he filed no post-

sentence motions or direct appeal.             Thus, Griggs’ judgment of sentence

became final after the time expired for him to file a direct appeal, or on

September 15, 2011. See Pa.R.A.P. 903. Thus, Griggs had until September

15, 2012 to file a timely PCRA petition. See 42 Pa.C.S. § 9545(b)(3). Griggs

filed the instant PCRA petition, his second, on January 6, 2017 – more than

four and one half years after that deadline. Thus, it is patently untimely and

the PCRA court had no jurisdiction to entertain Griggs’ petition unless he pled

and proved one of the exceptions to the jurisdictional time bar set forth in

section 9545(b)(1).

       Griggs’ claim that his sentence is illegal because the court imposed an

unconstitutional mandatory minimum statute is unavailing.              In order to

overcome the untimeliness of his petition, he asserts that this issue invokes

the PCRA’s “newly recognized constitutional right” exception.        A close review

of the certified record indicates, however, that the court did not impose an

illegal mandatory minimum sentence.              Rather, the trial court applied 42

Pa.C.S. § 9714(a)(1), the “second-strike” provision, which increased the

mandatory minimum based on Griggs’ prior convictions, not on elements of

offenses.     See 42 Pa.C.S. § 9714(a)(1) (requiring imposition of ten-year

mandatory minimum sentence upon second conviction of crime of violence).11

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 We also note that even if Griggs had been sentenced to an unconstitutional
11

mandatory minimum, our Supreme Court has held that although Alleyne



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       Our case law is clear that Alleyne did not overturn prior precedent

holding that prior convictions are sentencing factors and not elements of

offenses.     Because section 9714(a)(1) increases mandatory minimum

sentences based on prior convictions, Griggs’ sentence does not implicate

Alleyne. Commonwealth v. Reid, 177 A.3d 777 (Pa. Super. 2015).

       Because the PCRA court’s findings were supported by the record and its

order is free of legal error, we affirm. Blackwell, supra.

       Order affirmed.12

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/18




____________________________________________


establishes a new rule of federal constitutional law, it does not apply to cases
pending on collateral review. See Commonwealth v. Washington, 142
A.3d 810 (Pa. 2016). Moreover, Alleyne does not meet the new constitutional
right exception to the PCRA time bar. Commonwealth v. Riggle, 119 A.3d
1058, 1064 (Pa. Super. 2015).

12 We also note that Griggs failed to raise his issue regarding the voluntariness
of his guilty plea in his Rule 1925(b) statement. Thus, we would find it waived
even if his petition were timely filed. Moreover, Griggs’ claim that the court
erred in not appointing him counsel for this second PCRA petition is meritless.
An indigent defendant is only entitled to counsel on his or her first PCRA
petition. See Pa.R.Crim.P. 907.

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