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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                                        :
                                        :
            v.                          :
                                        :
JOSEPH ANTONIO GRIGGS                   :
                                        :
                  APPELLANT             :     No. 61 MDA 2016

              Appeal from the PCRA Order December 18, 2015
             In the Court of Common Pleas of Dauphin County
            Criminal Division at No(s): CP-22-CR-0004991-2008

BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY DUBOW, J.:                       FILED OCTOBER 11, 2016

      Appellant, Joseph A. Griggs, appeals pro se from the order entered in

the Dauphin County Court of Common Pleas, which dismissed his combined1

Writ of Habeas Corpus and second Petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, as untimely. After

careful review, we affirm.

      The PCRA court accurately summarized the relevant factual and

procedural history as follows:

      On September 9, 2008, [Appellant] was charged with one (1)
      count of Rape [by Forcible Compulsion], one (1) count of
      Aggravated Assault, and one (1) count of Terroristic Threats. A

1
  Appellant filed a single document entitled “Petition for Writ of Habeas
Corpus under Article I, Section 14 of the Pennsylvania Constitution and for
Post[ ]Conviction Relief under the Post Conviction Relief Act.”
J. S62022/16


     jury trial was held on January 26, 2015 before the Honorable
     Lawrence F. Clark, Jr., now retired. [Appellant] was found guilty
     of Count 1 (Rape) and Count 2 (Aggravated Assault), and found
     not guilty of Count 3 (Terroristic Threats). Sentencing was
     deferred pending the outcome of a presentence investigation and
     an assessment by the Sexual Offender Assessment Board
     (“SOAB”).

     On June 3, 2010, [Appellant] was found to be a sexually violent
     predator and sentenced to an aggregate term of thirty (30) to
     thirty-five (35) years’ imprisonment, follow[ed] by ten (10)
     years of probation. [Appellant] was given credit for his time
     served between September 10, 2008 and June 3, 2010.

     [Appellant] filed a direct appeal on August 3, 2010 . . . .
     [Appellant’s] sentence was affirmed by the Superior Court of
     Pennsylvania on May 10, 2011. [Appellant] did not exercise his
     right to appeal to the Supreme Court of Pennsylvania, nor the
     Supreme Court of the United States.

     [Appellant] filed a pro se PCRA motion on October 16, 2012.
     Jennifer E. Tobias, Esquire, was appointed by the court as PCRA
     counsel. Subsequently, on January 15, 2013, [Appellant] wrote
     to Attorney Tobias informing her that he did not trust her and
     further insulting her. Attorney Tobias subsequently requested
     the court's permission to withdraw from representation. The
     petition was granted on March 6, 2013, and Jonathan Crisp,
     Esquire, was appointed as replacement PCRA counsel.

     On October 14, 2013, Attorney Crisp filed a Petition to Withdraw
     and a "no-merit letter" pursuant to Commonwealth v. Turner,
     544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550
     A.2d 213 (Pa. Super. 1988). On December 16, 2013, the Court
     issued an Order dismissing [Appellant’s] PCRA petition [as
     untimely], and granting Attorney Crisp's request to withdraw as
     counsel.    [Appellant] appealed the dismissal of his PCRA to
     Superior Court, which was subsequently affirmed on January 22,
     2015.

     On August [5], 2015, [Appellant] filed the instant Petition for
     Writ of Habeas Corpus and PCRA relief challenging the legali[ty]
     of his sentence. Defendant alleges that the trial court imposed a




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      mandatory minimum sentence under 18 Pa.C.S.[] § 9718[2]
      which was found unconstitutional by Commonwealth v.
      Hopkins, 117 A.3d 257 (Pa. 2015), Alleyne v. United States,
      133 S.Ct 2151 (2013), and Commonwealth v. Newman, 2014
      Pa. Super. 178 (Pa. Super. 2014).

PCRA Court Opinion, filed 11/24/15, at 1-3 (unpaginated) (footnotes

omitted).

      On November 24, 2015, the PCRA court issued a Pa.R.Crim.P. 907

Notice advising Appellant of its intent to dismiss his Petition, noting that it

lacked jurisdiction to consider Appellant’s underlying claim because the

Petition was not timely filed, and Appellant had failed to plead and prove a

timeliness exception.   The PCRA court dismissed his Petition on December

18, 2015.3 This timely appeal followed.

      Appellant raises the following eight issues on appeal, reordered for

ease of disposition:

      1. Does not the Court have jurisdiction to review these claims
      under Pennsylvania constitutional guarantee of habeas corpus?

      2. Does not the creation of two classes of defendant offenders
      violates the Pennsylvania Constitution?

      3. Does not the sentencing disproportionality violates [sic] both
      the United State[s] and Pennsylvania Constitution?


2
  18 Pa.C.S. § 9718 codifies mandatory minimum sentences for certain
offenses against infant persons. Appellant was not sentenced pursuant to
Section 9718.     He instead received a mandatory minimum sentence
because, at the time of the instant offense, Appellant had a prior conviction
for Rape. N.T., 6/3/10, at 5, 16. See also 18 Pa.C.S. 9718.2(a)(1).
3
  Appellant filed a response to the PCRA court’s 907 Notice after the PCRA
court had already dismissed his Petition.



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     4. Does not the recent decision of the United States Supreme
     Court in Alleyne v. United States, 133 S.Ct. 2151, 2156, 2164
     (2013), which held that any fact that increases the mandatory
     minimum sentence for a crime is an element that must be
     submitted to the jury and found beyond a reasonable doubt?

     5. By relying upon the recent interpretation of the relevant law
     for the first time which made it clear that Appellant's conduct
     was not within the scope of the Constitutional construction of
     statutes under Section 1 Pa.C.S.A. § 1925, does not the
     Pennsylvania Superior Court in Commonwealth v. Newman,
     99 A.3d 86, 2014 WL 4088805 (Pa. Super. 2014) (en banc),
     constitute the application of both newly-discovered facts
     exception and the right asserted is a constitutional right that was
     recognized by the Supreme Court of the United States within the
     meaning of the Pennsylvania Post-Conviction Relief Act,
     exceptions to the time constraints under that Act, 42 Pa.C.S.A. §
     9545(b)(1)(ii)(iii)(2)? Of course, our Supreme Court is currently
     considering whether Alleyne claims are non-waivable legality of
     sentence issues. Commonwealth v. Johnson, 93 A.2d 806
     (Pa. 2014). Reading decisions from this Court that have ruled
     that mandatory minimum sentencing statutes that violate
     Alleyne are both unconstitutional and non-severable in
     combination with precedent establishing that Alleyne-styled
     claims are legality of sentence questions.

     6. By applying retroactively its holdings in Alleyne v. United
     States,     133     S.Ct.  2151,    2156,     2164    (2013),   and
     Commonwealth v. Newman, 99 A.3d 86, 2014 WL 4088805
     (Pa. Super. 2014) (en banc), does not the Pennsylvania
     Supreme Court in Commonwealth v. Cunningham, No. 38
     EAP 2012, decided October 30, 2013, Slip Op. at 13 -14, invite
     litigates [sic] to argue for a broader retroactively analysis under
     Pennsylvania law, presenting arguments that the new rule is
     resonate with Pennsylvania norms and that "good grounds" exist
     to apply the rule retroactively on collateral review?

     7. Does not Allenye and Newman's decisions resonate with
     Pennsylvania norms?

     8. Does not [g]ood grounds exist to apply the Alleyne and
     Newman's decisions retroactively?




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Appellant’s Brief at 2-3.

      We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its Order is otherwise

free of legal error.   Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014).   Before addressing the merits of Appellant’s claims, however, we

must first determine whether we have jurisdiction to entertain the

underlying PCRA Petition.    No court has jurisdiction to hear an untimely

PCRA petition. Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008).

      Appellant first attempts to invoke our jurisdiction by averring that he

“meets the requirements under Pennsylvania’s [H]abeas [C]orpus statute[.]”

Appellant’s Brief at 9. It is well-settled that the PCRA is intended to be the

“sole means of achieving post-conviction relief.”        42 Pa.C.S. § 9542;

Commonwealth v. Peterkin, 722 A.2d 638, 640 (Pa. 1998). So long as

the PCRA provides a potential remedy to a given claim, “the PCRA statute

subsumes the writ of [H]abeas [C]orpus.” Commonwealth v. Taylor, 65

A.3d 462, 465-66 (Pa. Super. 2013) (citation omitted).

      A challenge to the legality of sentence is cognizable under the PCRA.

See Commonwealth v. Beck, 848 A.2d 987, 989 (Pa.Super.2004). When

raising a challenge to the legality of his sentence, “a defendant cannot

escape the PCRA time-bar by titling his petition or motion as a writ of

habeas corpus.” Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super.

2013).



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      Here, Appellant is challenging the legality of his sentence, a claim

which is cognizable under the PCRA.4 His attempt to obtain relief through a

writ of Habeas Corpus, thus, fails.

      Appellant also attempts to invoke our jurisdiction by averring that he is

entitled to relief under the PCRA as a result of the constitutional right

recognized in Alleyne, supra, and its progeny. This claim also fails.

      A PCRA petition must be filed within one year of the date the

underlying judgment becomes final; a judgment is deemed final at the

conclusion of direct review or at the expiration of time for seeking review.

42 Pa.C.S. § 9545(b)(1), (3).     The statutory exceptions to the timeliness

requirement allow for very limited circumstances to excuse the late filing of

a petition. See 42 Pa.C.S. §§ 9545(b)(1)(i)-(iii).

      Here, Appellant is invoking the timeliness exception found in Section

9545(b)(1)(iii). In order to obtain relief under this subsection, a petitioner

must plead and prove that “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)(iii).

A petitioner asserting a timeliness exception must file a petition within 60


4
  Although Appellant dresses his arguments up as equal protection and
proportionality challenges in portions of his Brief, at the heart of each
argument is simply his oft-repeated challenge to the legality of his sentence
under Alleyne.



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days of the date the claim could have been presented.       See 42 Pa.C.S. §

9545(b)(2).

      Here, Appellant’s sentence was affirmed by this Court on May 10,

2011. He did not file a petition for allowance of appeal with our Supreme

Court and his Judgment of Sentence became final on June 9, 2011.          See

Pa.R.A.P. 1113. Appellant, thus, had until June 9, 2012 to file a timely PCRA

petition.   He filed the instant Petition over four years later, on August 5,

2015. It is, therefore, patently untimely.

      Appellant asserted in his PCRA petition that he is entitled to the PCRA’s

timeliness exception provided in Section 9545(b)(1)(iii) in light of Alleyne,

supra. Alleyne was decided on June 17, 2013. Appellant did not file the

instant PCRA petition until August 2015, over two years after Alleyne was

decided.    Appellant thus failed to comply with the 60-day requirement of

section 9545(b)(2).

      Moreover, our Supreme Court has explicitly held that Alleyne does not

apply retroactively on collateral review. Commonwealth v. Washington,

142 A.3d 810, 820 (Pa. 2016).

      Because Appellant’s instant PCRA petition was patently untimely and

he failed to prove the applicability of any of the PCRA’s timeliness

exceptions, the PCRA court lacked jurisdiction to address his claims and

properly dismissed his Petition seeking relief under Alleyne.

      Order affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/11/2016




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