J-S66042-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, 

 Appellee 

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RICHARD J. GRIFFITHS, 

 Appellant 

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IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 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 Super. 1999) (unpublished memorandum).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-discoveredfacts 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