J-S62011-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JUSTINO GRIGGS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3145 EDA 2017

Appeal from the PCRA Order August 25, 2017

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0001962-2010

BEFORE: LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 15, 2018

Justino Griggs appeals, pro se, from the trial court’s order dismissing 

his Post Conviction Relief Act (PCRA) petition1 as untimely. We affirm.

On August 15, 2011, Griggs entered a negotiated guilty plea to robbery

(F-1),

2 burglary (F-1),3 conspiracy,4 possession of an instrument of crime 

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1 42 Pa.C.S. §§ 9541-9546.

2 18 Pa.C.S § 3701(a)(1)(ii).

3 18 Pa.C.S. § 3502(a).

4 18 Pa.C.S. § 903.
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(PIC),5 aggravated assault (F-1),

6 and various firearm offenses.7

 Griggs was 

sentenced to three concurrent terms of 10-20 years’ incarceration8for the 

aggravated assault, robbery, conspiracy and burglary convictions, a 

consecutive sentence of 5-10 years’ imprisonment for possession of a 

prohibited firearm, and a sentence of 31⁄2-7 years’ imprisonment for firearms 

carried without a license which was to run concurrent with the other firearm 

sentence. In total, Griggs was ordered to serve 15-30 years in prison. Griggs 

did not file post-sentence motions or a direct appeal. On March 29, 2012, 

Griggs filed a pro se PCRA petition; counsel was appointed and filed a “no 

merit”9letter. The court dismissed Griggs’ petition on August 9, 2013, and 

permitted counsel to withdraw. Griggs filed a pro se appeal and our Court 

affirmed the PCRA court’s order on June 24, 2014.

Griggs filed the instant pro se PCRA petition, his second, on January 6, 

2017, and an amended pro se petition on March 9, 2017. On July 25, 2017, 

the trial court issued Pa.R.Crim.P. 907 notice of intent to dismiss Griggs’ 

petition. On August 25, 2017, the court formally dismissed Griggs’ petition. 

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5 18 Pa.C.S. § 907(a).

6 18 Pa.C.S § 2702(a).

7

 18 Pa.C.S. § 6105(a)(1) (possession of firearm prohibited); 18 Pa.C.S. § 

6106(a)(1) (firearms not to be carried without license).

8 See 42 Pa.C.S.A. § 9714, infra at 5-6.

9 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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Griggs filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b) 

concise statement of errors complained of on appeal. On appeal, Griggs 

presents the following issues for our consideration:

(1) Whether the Trial Court erred in finding that [Griggs’] guilty 

plea was entered in voluntarily, knowingly, and intelligently 

in light of the statutory interpretation in Commonwealth 

V. Hopkins, 98 MAP 2013 premised upon Alleyne v. 

United States, 133 S. Ct. 2151 (2013)?

(2) Whether [Griggs’] sentence is illegal and subject to 

correction mandated by [the] PCRA provisions as such 

challenge was asserted in a timely PCRA?

(3) In Alleyne v. United States[,] 133 S. Ct. 2151 (2013)[,]10

[was it decided] that this is “New Law” or did the U.S. 

Supreme Court interpret the relevant law for the first time 

and ma[k]e it clear what the “General Assembly’s” original 

intent was in legislating [the c]onstitutionality of Section 

9712 and similar Pennsylvania mandatory minimum 

statutes?

Appellant’s Brief, at 4.

On appeal from the denial of PCRA relief, this court must determine 

whether the post-conviction court’s findings were supported by the record and 

whether the court’s order is otherwise free of legal error. Commonwealth 

v. Blackwell, 647 A.2d 915 (Pa. Super. 1994). The findings of the postconviction court will not be disturbed unless they have no support in the 

record. Id.

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10 In Alleyne, the United States Supreme Court held that, under the Sixth 

Amendment to the United States Constitution, U.S. Const. amend. VI, a jury 

must find beyond a reasonable doubt any facts that increase a mandatory 

minimum sentence.
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 Any petition filed under the PCRA must be filed within one year of the date 

the underlying judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). For 

purposes of determining when a petitioner’s judgment becomes final under 

section 9545(b)(1), the PCRA states that “a judgment becomes final at the 

conclusion of direct review, including discretionary review in the Supreme 

Court of the United States and the Supreme Court of Pennsylvania, or at the 

expiration of time for seeking the review.” 42 Pa.C.S.A. § 9545 (b)(3). In 

three instances, courts will not hold PCRA petitioners to the strict one-year 

filing time frame. A PCRA petition may be filed within 60 days from the date 

the claim could have been presented when the petition alleges and the 

petitioner proves that:

(1) 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; 

(2) 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

(3) 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.A. §§ 9545(b)(1)(i), (ii), & (iii). A petitioner has the burden to 

plead and prove these exceptions. Commonwealth v. Pursell, 749 A.2d 911, 

914 (Pa. 2000).
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Instantly, Griggs was sentenced on August 15, 2011; he filed no postsentence motions or direct appeal. Thus, Griggs’ judgment of sentence 

became final after the time expired for him to file a direct appeal, or on 

September 15, 2011. See Pa.R.A.P. 903. Thus, Griggs had until September 

15, 2012 to file a timely PCRA petition. See 42 Pa.C.S. § 9545(b)(3). Griggs 

filed the instant PCRA petition, his second, on January 6, 2017 – more than 

four and one half years after that deadline. Thus, it is patently untimely and 

the PCRA court had no jurisdiction to entertain Griggs’ petition unless he pled 

and proved one of the exceptions to the jurisdictional time bar set forth in 

section 9545(b)(1).

Griggs’ claim that his sentence is illegal because the court imposed an 

unconstitutional mandatory minimum statute is unavailing. In order to 

overcome the untimeliness of his petition, he asserts that this issue invokes 

the PCRA’s “newly recognized constitutional right” exception. A close review 

of the certified record indicates, however, that the court did not impose an 

illegal mandatory minimum sentence. Rather, the trial court applied 42 

Pa.C.S. § 9714(a)(1), the “second-strike” provision, which increased the 

mandatory minimum based on Griggs’ prior convictions, not on elements of 

offenses. See 42 Pa.C.S. § 9714(a)(1) (requiring imposition of ten-year 

mandatory minimum sentence upon second conviction of crime of violence).

11

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11 We also note that even if Griggs had been sentenced to an unconstitutional 

mandatory minimum, our Supreme Court has held that although Alleyne
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Our case law is clear that Alleyne did not overturn prior precedent 

holding that prior convictions are sentencing factors and not elements of 

offenses. Because section 9714(a)(1) increases mandatory minimum 

sentences based on prior convictions, Griggs’ sentence does not implicate 

Alleyne. Commonwealth v. Reid, 177 A.3d 777 (Pa. Super. 2015).

Because the PCRA court’s findings were supported by the record and its

order is free of legal error, we affirm. Blackwell, supra.

Order affirmed.12

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/15/18

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establishes a new rule of federal constitutional law, it does not apply to cases 

pending on collateral review. See Commonwealth v. Washington, 142 

A.3d 810 (Pa. 2016). Moreover, Alleyne does not meet the new constitutional 

right exception to the PCRA time bar. Commonwealth v. Riggle, 119 A.3d 

1058, 1064 (Pa. Super. 2015).

12 We also note that Griggs failed to raise his issue regarding the voluntariness 

of his guilty plea in his Rule 1925(b) statement. Thus, we would find it waived 

even if his petition were timely filed. Moreover, Griggs’ claim that the court 

erred in not appointing him counsel for this second PCRA petition is meritless. 

An indigent defendant is only entitled to counsel on his or her first PCRA 

petition. See Pa.R.Crim.P. 907.
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