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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARIO L. GRIFFIN,
Appellant No. 2366 EDA 2016
Appeal from the PCRA Order Entered June 21, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0004527-2004
BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 29, 2017
Appellant, Mario L. Griffin, appeals pro se from the post-conviction
court’s June 21, 2016 order denying, as untimely, his second petition filed
under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We
affirm.
The PCRA court summarized the facts and procedural history of
Appellant’s case as follows:
After a jury trial, Appellant was found guilty of attempted
murder, aggravated assault, and simple assault. The facts
surrounding these verdicts were that Appellant had brutally
stabbed and beat his step-mother, and assaulted another
individual who tried to intervene. On July 25, 2005, Appellant
was sentenced by the Honorable Frank T. Hazel to an aggregate
term of sixteen to forty-two years in a state correctional facility.
Appellant filed [a] timely direct appeal to the Pennsylvania
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*
Former Justice specially assigned to the Superior Court.
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Superior Court, which affirmed the judgment of sentence on
April 13, 2006. [See Commonwealth v. Griffin, 902 A.2d 977
(Pa. Super. 2006) (unpublished memorandum).] On January 9,
2007, the Pennsylvania Supreme Court denied Appellant’s
Petition for Allowance of Appeal. [See Commonwealth v.
Griffin, 916 A.2d 631 (Pa. 2007).]
On January 9, 2008, Appellant filed his first pro se PCRA
petition. Counsel was appointed and filed a “no merit” letter and
petition to withdraw on February 22, 2008. [See
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).]
The PCRA [c]ourt issued a notice of intent to dismiss without a
hearing on March 25, 2008, to which Appellant responded … on
April 24, 2008. The petition was ultimately dismissed on May 9,
2008. On June 5, 2008, Appellant appealed the dismissal of his
first PCRA petition to the Superior Court, which affirmed the
dismissal, and the Pennsylvania Supreme Court denied a petition
for [allowance of] appeal on September 22, 2009. [See
Commonwealth v. Griffin, 972 A.2d 552 (Pa. Super. 2009)
(unpublished memorandum), appeal denied, 980 A.2d 605 (Pa.
2009).]
On April 1, 2016, Appellant filed his second PCRA petition.
On May 20, 2016, this [c]ourt issued a [Pa.R.Crim.P. 907] notice
of intent to dismiss [the petition] without a hearing, to which
Appellant responded on June 10, 2016. On June 21, 2016, this
[c]ourt dismissed the petition on the grounds that the petition
was untimely, and did not fit any of the time[-]bar exceptions.
On July 20, 2016, Appellant appealed to the Pennsylvania
Superior Court.
PCRA Court Opinion, 10/17/16, at 1-2 (footnotes omitted).
It does not appear that the PCRA court issued an order directing
Appellant to file a Pa.R.A.P. 1925(b) statement. Notwithstanding, Appellant
filed a pro se motion for an extension of time within which to file a concise
statement in August of 2016. On August 29, 2016, the court issued an
order granting that motion and directing that Appellant file his Rule 1925(b)
statement within 45 days. The record indicates that Appellant ultimately did
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not file a Rule 1925(b) statement.1 On October 18, 2016, the PCRA court
issued a Rule 1925(a) opinion, addressing the claims Appellant raised in his
pro se petition.
Appellant thereafter filed a pro se brief with this Court, presenting the
following, verbatim issue for our review: “The Criminal
Information/Indictment deprived the Court of subject matter jurisdiction, Ab
Initio And the conviction is void; per Pa. R. App. Proc. 2119(b) and the
admission of inadmissible evidence constituting jeopardy under Smith?”
Appellant’s Brief at III.
This Court’s standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the
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1
We will not deem the claim Appellant raises herein waived, even though he
failed to file a Rule 1925(b) statement. The court did not initially issue an
order directing Appellant to file a concise statement and, in the order
granting Appellant’s motion for an extension of time, the court did not
inform him that a failure to file a Rule 1925(b) statement would result in
waiver of his claims on appeal. See Pa.R.A.P. 1925(b)(3)(iv) (requiring the
Rule 1925(b) order to inform the appellant “that any issue not properly
included in the Statement timely filed and served … shall be deemed
waived”). Consequently, because the court’s order did not comply with the
requirements of Rule 1925(b), we will not consider Appellant’s issue waived
for our review. See Greater Erie Indus. Development Corp. v. Presque
Isle Downs, Inc., 88 A.3d 222, 225 (Pa. Super. 2014) (holding that in
finding waiver based on non-compliance with Rule 1925(b), it is the court’s
order that triggers the appellant’s obligation).
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timeliness of Appellant’s petition, because the PCRA time limitations
implicate our jurisdiction and may not be altered or disregarded in order to
address the merits of a petition. Commonwealth v. Bennett, 930 A.2d
1264, 1267 (Pa. 2007). Under the PCRA, any petition for post-conviction
relief, including a second or subsequent one, must be filed within one year of
the date the judgment of sentence becomes final, unless one of the following
exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition
alleges and the petitioner proves that:
(i) 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;
(ii) 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
(iii) 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)(i)-(iii). Any petition attempting to invoke one of
these exceptions “shall be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
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Here, Appellant’s judgment of sentence became final on April 9, 2007,
90 days after our Supreme Court denied his petition for permission to
appeal. See 42 Pa.C.S. § 9545(b)(3) (stating that a judgment of sentence
becomes final at the conclusion of direct review or the expiration of the time
for seeking the review); Commonwealth v. Owens, 718 A.2d 330, 331
(Pa. Super. 1998) (directing that under the PCRA, petitioner’s judgment of
sentence becomes final ninety days after our Supreme Court rejects his or
her petition for allowance of appeal since petitioner had ninety additional
days to seek review with the United States Supreme Court). Consequently,
Appellant’s present, pro se petition, filed on April 1, 2016, is patently
untimely and, for this Court to have jurisdiction to review the merits thereof,
Appellant must prove that he meets one of the exceptions to the timeliness
requirements set forth in 42 Pa.C.S. § 9545(b).
Appellant wholly fails to meet this burden. In his appellate brief,
Appellant contends that the trial court lacked jurisdiction over his case
because the criminal information was ostensibly defective and, as a result,
his sentence is illegal. Our Supreme Court has held that a claim challenging
the legality of sentence must first satisfy the PCRA’s time limits to be
reviewed under the scope of the PCRA. See Commonwealth v. Fahy, 737
A.2d 214, 223 (Pa. 1999). Appellant does not explain which timeliness
exception his argument meets, and we cannot ascertain how his claim could
satisfy any subpart of section 9545(b). We also point out that Appellant
cannot prove that he raised his challenge to the trial court’s jurisdiction and
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the legality of his sentence within 60 days of when he could have first done
so. Accordingly, the PCRA court did not err in denying Appellant’s untimely
petition.2
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/29/2017
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2
We note that Appellant presented different challenges to the legality of his
sentence in his pro se petition, contending that his sentence is illegal under
Alleyne v. United States, 133 S.Ct. 2151, 2163 (2013) (holding that “facts
that increase mandatory minimum sentences must be submitted to the jury”
and found beyond a reasonable doubt), and/or Miller v. Alabama, 132
S.Ct. 2455, 2469 (2012) (holding that “the Eighth Amendment forbids a
sentencing scheme that mandates life in prison without possibility of parole
for juvenile offenders”). While Appellant abandons these specific claims on
appeal, we note that neither of them would satisfy a timeliness exception in
this case. First, our Supreme Court has held that Alleyne does not apply
retroactively to cases on collateral review. See Commonwealth v.
Washington, 142 A.3d 810, 820 (Pa. 2016). In any event, Alleyne would
not apply in this case because Appellant was not sentenced to a mandatory
minimum term of incarceration. Second, while Miller does apply
retroactively to cases on collateral review, see Montgomery v. Louisiana,
136 S.Ct. 718 (2016), Appellant was not sentenced to a mandatory term of
life without the possibility of parole, and he also was not a juvenile at the
time he committed his offenses. See PCRA Court Opinion, 10/18/16, at 4.
Accordingly, we agree with the PCRA court that the claims presented by
Appellant in his pro se petition cannot overcome the PCRA’s jurisdictional
time-bar. See id. at 3-4.
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