J. S62022/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

- 2 -

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 
J. S62022/16

- 3 -

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.
J. S62022/16

- 4 -

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?
J. S62022/16

- 5 -

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).
J. S62022/16

- 6 -

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. 
J. S62022/16

- 7 -

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. 
J. S62022/16

- 8 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/11/2016