J-S66042-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee

v. RICHARD J. GRIFFITHS, Appellant : : : : : : : : : 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), aggr avated indecent assault, and indecent assault, and to two counts of corrupti on of minors. He was sentenced originally to an aggregate term of 53 to 106 years of imprisonment to be followed by ten years of probati on, but following post-sentence motions, the trial court resentenced Appellant to an aggregate term of 33 to 66 years of imprisonment to be follow ed by ten years of probation. Appellant timely filed an appeal, and t his Court affirmed

* Retired Senior Judge assigned to the Superior Cou rt.J-S66042-15

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Appellant’s judgment of sentence on December 16, 19 99. Commonwealth

v. Griffiths , 750 A.2d 368 (Pa. Super. 1999) (unpublished memor andum). 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 Novembe r 14, 2001, and the

PCRA court denied it on the basis that it was untim ely filed. On March 25, 2015, Appellant pro se filed a “Post-Sentence Motion ‘Nunc Pro Tunc,’” whi ch 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 file d timely based on the newly-discovered-facts 3 and new-constitutional-right exceptions to the PCR A

1 “It is ... well-settled that ‘the PCRA provides th e sole means for obtaining collateral review, and that any petition filed afte r 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 counse l, which the PCRA court denied. Appellant reiterates his request in his br ief to this Court. We observe that, as the PCRA correctly explained, coun sel shall be appointed “[o]n a second or subsequent petition[] when an unr epresented 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 en titled 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 thatJ-S66042-15

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time-bar, 42 Pa.C.S. § 9545(b)(1)(ii)-(iii), as wel l 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 cou rt issued notice of its intent to dismiss the petition without a hearing pu rsuant to Pa.R.Crim.P. 907 on the basis that the petition was filed untimely a nd the court lacked jurisdiction to consider it. On May 6, 2015, the P CRA formally dismissed the petition. This appeal followed. The timeliness of a post-conviction petition is ju risdictional. 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 jurisdictio n, we simply do not have the legal authority to address the substantive claims.’ ”). Generally, a petition for relief under the PCRA, in cluding a second or subsequent petition, must be filed within one year of the date the judgment of sentence is final unless the petition alleges, a nd the petitioner proves, that an exception to the time for filing the petiti on 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 capitalizati on, quotation marks, and punctuation omitted). In so doing, Appellant misqu otes 42 Pa.C.S. § 9543(A)(2)(vi), which sets forth a substantive cl aim regarding after-discovered evidence that may entitle a petiti oner to PCRA relief; it is not one of the exceptions to the PCRA time-bar. Th us, we assume that Appellant intended to use Alleyne as the basis for the newly-discoveredfacts exception to the timeliness requirement.J-S66042-15

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was raised within 60 days of the date on which it b ecame available. 42 Pa.C.S. § 9545(b)(1)-(2). Appellant filed the 2015 petition more than a decad e after his judgment of sentence became final. Thus, the petit ion 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-discove red-facts exception, “[o]ur Courts have expressly rejected the notion th at judicial decisions can be considered newly-discovered facts which would in voke 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 satisf y 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 th at Alleyne does not apply retroactively to cases on collateral revi ew). Finally, with respect to Appellant’s contention reg arding legality-of-sentence claims and waiver, we note tha tJ-S66042-15

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an issue pertaining to Alleyne goes to the legality of the sentence. It is generally true that this Court is e ndowed with the ability to consider an issue of illegality of sente nce sua sponte. However, in order for this Court to review a legali ty of sentence claim, there must be a basis for our jurisdiction t o engage in such review. As this Court recently noted, [t]hough not technically waivable, a legality [of sentence] clai m may nevertheless be lost should it be raised ... in an untimely PCRA petition for which no time-bar exception applies, t hus 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 file d, 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