J-S66042-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 911 WDA 2015

              Appeal from the PCRA Order Entered May 6, 2015,
                in the Court of Common Pleas of Erie County,
             Criminal Division at No(s): CP-25-CR-0002122-1998

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

MEMORANDUM BY STRASSBURGER, J.:                 FILED JANUARY 05, 2016

     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.

     On October 16, 1998, Appellant pled guilty to four counts each of

involuntary deviate sexual intercourse (IDSI), aggravated indecent assault,

and indecent assault, and to two counts of corruption of minors.    He was

sentenced originally to an aggregate term of 53 to 106 years of

imprisonment to be followed by ten years of probation, but following

post-sentence motions, the trial court resentenced Appellant to an aggregate

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

probation.    Appellant timely filed an appeal, and this Court affirmed


* Retired Senior Judge assigned to the Superior Court.
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Appellant’s judgment of sentence on December 16, 1999. Commonwealth

v. Griffiths, 750 A.2d 368 (Pa. Super. 1999) (unpublished memorandum).

Appellant filed a petition for allowance of appeal to our Supreme Court,

which denied the petition on September 5, 2000.           Commonwealth v.

Griffiths, 761 A.2d 548 (Pa. 2000).

      Appellant filed his first PCRA petition on November 14, 2001, and the

PCRA court denied it on the basis that it was untimely filed. On March 25,

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

the PCRA court treated as a PCRA petition.1 Therein, Appellant claimed that

his sentence is illegal under Alleyne v. United States, 133 S.Ct. 2151

(2013), and its progeny.2      From a generous reading of the petition, it

appears that Appellant alleged the petition is filed timely based on the

newly-discovered-facts3 and new-constitutional-right exceptions to the PCRA


1
  “It is ... well-settled that ‘the PCRA provides the sole means for obtaining
collateral review, and that any petition filed after the judgment of sentence
becomes final will be treated as a PCRA petition.’” Commonwealth v.
Fowler, 930 A.2d 586, 591 (Pa. Super. 2007) (quoting Commonwealth v.
Johnson, 803 A.2d 1291, 1293 (Pa. Super. 2002)).
2
  Appellant also requested the appointment of counsel, which the PCRA court
denied. Appellant reiterates his request in his brief to this Court. We
observe that, as the PCRA correctly explained, 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).         Thus, Appellant is not entitled to the
appointment of counsel herein.
3
  In his petition, Appellant purports to assert the following as a timeliness
exception: “the unavailability at the time of trial of exculpatory evidence that
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time-bar, 42 Pa.C.S. § 9545(b)(1)(ii)-(iii), as well as the general proposition

that   legality-of-sentence   claims   cannot   be   waived.    PCRA    Petition,

3/25/2015, at 4-6. On April 15, 2015, 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 filed untimely and the court lacked

jurisdiction to consider it. On May 6, 2015, the PCRA formally dismissed the

petition. This appeal followed.

       The timeliness of a post-conviction petition is jurisdictional. 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 an exception to the time for filing the petition is met, and that the claim

has subsequently bec[o]me available and would [have] changed the
outcome of sentencing if it had been introduced at sentencing.” PCRA
Petition, 3/25/2015, at 4 (unnecessary capitalization, quotation marks, and
punctuation omitted).      In so doing, Appellant misquotes 42 Pa.C.S.
§ 9543(A)(2)(vi), which sets forth a substantive claim regarding
after-discovered evidence that may entitle a petitioner to PCRA relief; it is
not one of the exceptions to the PCRA time-bar. Thus, we assume that
Appellant intended to use Alleyne as the basis for the newly-discovered-
facts exception to the timeliness requirement.


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was raised within 60 days of the date on which it became available. 42

Pa.C.S. § 9545(b)(1)-(2).

      Appellant filed the 2015 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).

      Appellant’s reliance on Alleyne does not satisfy the exceptions he

seeks to invoke.    With respect to the newly-discovered-facts exception,

“[o]ur Courts have expressly rejected the notion that judicial decisions can

be considered newly-discovered facts which would invoke the protections

afforded by section 9545(b)(1)(ii).” Commonwealth v. Cintora, 69 A.3d

759, 763 (Pa. Super. 2013) (citing Commonwealth v. Watts, 23 A.3d 980,

986 (Pa. 2011)). Moreover, Appellant cannot satisfy the exception in section

9545(b)(1)(iii) because “neither our Supreme Court, nor the United States

Supreme Court has held that Alleyne is to be applied retroactively to cases

in which the judgment of sentence had become final.” Commonwealth v.

Miller, 102 A.3d 988, 995 (Pa. Super. 2014); see also Commonwealth v.

Riggle, 119 A.3d 1058, 1067 (Pa. Super. 2015) (holding that Alleyne does

not apply retroactively to cases on collateral review).

      Finally,   with   respect    to    Appellant’s      contention   regarding

legality-of-sentence claims and waiver, we note that


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      an issue pertaining to Alleyne goes to the legality of the
      sentence. It is generally true that this Court is endowed with the
      ability to consider an issue of illegality of sentence sua sponte.
      However, in order for this Court to review a legality of sentence
      claim, there must be a basis for our jurisdiction to engage in
      such review. As this Court recently noted, [t]hough not
      technically waivable, a legality [of sentence] claim may
      nevertheless be lost should it be raised ... in an untimely PCRA
      petition for which no time-bar exception applies, thus depriving
      the court of jurisdiction over the claim.

Miller, 102 A.3d at 995 (citations and internal quotation marks omitted).

      Because Appellant’s PCRA petition was untimely filed, the PCRA court

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

we affirm the PCRA court’s May 6, 2015 order.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/5/2016




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