Com. v. Griggs, J.

J. S71034/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
JOSEPH ANTONIO GRIGGS, :
:
Appellant : No. 229 MDA 2014
Appeal from the PCRA Order December 16, 2013
In the Court of Common Pleas of Dauphin County
Criminal Division No(s).: CP-22-CR-0004991-2008
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 12, 2014
Appellant, Joseph Antonio Griggs, appeals pro se from the order
entered in the Dauphin County Court of Common Pleas dismissing his first
petition for relief filed pursuant to the Post Conviction Relief Act1 (“PCRA”) as
untimely and without merit. Appellant avers, inter alia, that his petition is
timely pursuant to 42 Pa.C.S. § 9545(b)(1)(iii). We affirm.
A prior panel of this Court summarized the facts and procedural history
of this case as follows:
[Appellant] and [the] victim[, Kristi Drasher] left the
home of a friend at approximately 1:00 a.m. on
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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September 7, 2008. The two arrived at the parking
lot of the Thompson Institute and conversed until
approximately 3:45 a.m., at which time, [Appellant]
proceeded to rape and assault the victim. At
approximately 5:30 a.m. the victim drove
[Appellant] to a motel, then immediately called
friends who transported her to the hospital. The
victim spoke to the police on September 7, 2008 and
again two days later. [Appellant] was arrested on
September 10, 2008, and subsequently charged with
Rape by Forcible Compulsion, Aggravated Assault,
and Terroristic Threats with Intent to Terrorize
Another.
[Appellant] was subsequently convicted by a jury of rape
and aggravated assault and acquitted of Terroristic
threats. On June 3, 2010, [Appellant] was sentenced to
300 months’ imprisonment on the rape charge and 60 to
120 months’ imprisonment on the aggravated assault
charge. The trial court also ordered that [Appellant] serve
120 months of probation following his term of confinement
and was classified as a sexually violent predator subject to
lifetime registration under Megal’s Law II.
[Appellant] did not file post-sentence motions. He filed his
notice of appeal on July 12, 2010.
Commonwealth v. Griggs, 1106 MDA 2010 (unpublished memorandum at
1-2) (Pa. Super. May 10, 2011) (footnote omitted). On May 10, 2011, this
Court affirmed the judgment of sentence. Id.
The PCRA court summarized further the procedural history of this case
as follows:
[Appellant] filed the instant petition seeking relief under
the [PCRA] and on October 19, 2012, Jennifer Tobias,
[E]squire, was appointed as PCRA counsel. On March 6,
2013, Attorney Tobias was permitted to withdraw; on
March 22, 2013, Jonathan Crisp, [E]squire, was appointed
as replacement PCRA counsel. On November 1, 2013,
Attorney Crisp filed an Amended Petition to Withdraw. On
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November 5, 2013, Judge [Lawrence F.] Clark[, Jr.]
notified [Appellant] that he intended to dismiss his PCRA
petition and [Appellant] filed objections on November 20,
2013 and again on December 5, 2013. On December 16,
201[3], Judge Clark[2] issued a Memorandum Opinion
dismissing the PCRA Petition [and granting counsel’s
motion to withdraw].
PCRA Ct. Statement in Lieu of Rule 1925(a) Opinion, 3/14/14, at 2 (footnote
omitted). Judge Tully noted that Judge Clark, in his memorandum
dismissing the PCRA petition, “had examined Attorney Crisp’s Motion to
Withdraw, found his factual, procedural, and legal analysis to be cogent and
accurate and had adopted it as its own.” Id. at 1. In the twenty─page
amended motion to withdraw, counsel averred the PCRA petition was
untimely and addressed Appellant’s claims, finding them to be without merit.
Judge Tully, in his March 14th statement, deferred to the December 16th
memorandum of Judge Clark. Id. at 2.
This timely appeal followed. On February 20, 2014, Appellant filed a
motion requesting DNA testing. The PCRA court opined that it “lack[ed]
jurisdiction to enter any rule, as a result of the outstanding appeal.” Id. at
2 n.2.
Appellant raises the following issues for our review, reproduced
verbatim:
2
Judge Clark retired and the Honorable William T. Tully issued the
statement in lieu of a Rule 1925(a) opinion.
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1. Whether PCRA court committed an error of law in
dismissing Appellant’s petition under the Post-Conviction
Relief Act’s exception of 42 Pa.C.S.A. § 9545 (B)(1)(iii)
After-Recognized Constitutional Right Exception-
Confrontation Clause.
2. PCRA Court committed an error of law and/or abuse in
it’s discretion dismissing Appellant’s PCRA as “patently
untimely.”
3. Was Appellant’s trial counsel ineffective?
4. Was the Appellant’s “Exculpatory Evidence or Newly
Discovered Evidence” ignored by the PCRA Court appointed
attorney’s?
5. Was Appellant prejudiced by the Lower Court of Dauphin
County and the Commonwealth of Dauphin County
(District Attorney’s office), who inturn committed
Prosecutorial misconduct and error of law?
6. Was trial attorney’s Public Defender’s office misleading,
not effective and not thorough in Appellant’s direct Appeal?
7. Did prosecution withhold evidence from appellant for
trial?
8. Did attorney agree that sentence given to Appellant was
illegal in nature?
9. Was trial attorney ineffective for not calling and
interviewing key character witness’s?
10. Whether Appellant was coerced into false confession?
11. Was a DNA kit performed?
12. Whether detective committed perjury when questioned
about conducting a rape exam?
13. Whether trial attorney was ineffective for not bringing
up alleged medicle history.
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14. Whether trial attorney was ineffective for not pusuing a
defense for inconsistent statement made by alleged.
15. Whether trial attorney was ineffective for not objecting
to questions asked and answers about DNA reports.
16. Whether PCRA attorney was ineffective for not raising
argument for Appellant nunc pro tunc.
17. Whether Appellant have merit to Appellant right nunc
pro tunc.
Appellant’s Brief at 4-6.
Before examining the merits of Appellant’s claims, we consider
whether the PCRA court had jurisdiction to entertain the underlying PCRA
petition.
We . . . turn to the time limits imposed by the PCRA, as
they implicate our jurisdiction to address any and all of
Appellant’s claims. To be timely, a PCRA petition must be
filed within one year of the date that the petitioner’s
judgment of sentence became final, unless the petition
alleges and the petitioner proves one or more of the
following statutory exceptions:
(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
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this section and has been held by that court to
apply retroactively.[3]
42 Pa.C.S. § 9545(b)(1) (emphasis added).
We emphasize that it is the petitioner who bears the
burden to allege and prove that one of the timeliness
exceptions applies. In addition, a petition invoking any of
the timeliness exceptions must be filed within 60 days of
the date the claim first could have been presented. 42
Pa.C.S. § 9545(b)(2). . . .
Commonwealth v. Marshall, 947 A.2d 714, 719-20 (Pa. 2008) (some
citations omitted and emphasis added).
Our Supreme Court has stated:
This Court has repeatedly stated that the PCRA timeliness
requirements are jurisdictional in nature and, accordingly,
a PCRA court cannot hear untimely PCRA petitions. In
addition, we have noted that the PCRA confers no
authority upon this Court to fashion ad hoc equitable
exceptions to the PCRA time-bar in addition to those
exceptions expressly delineated in the Act. We have also
recognized that the PCRA’s time restriction is
constitutionally valid.
Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations
and quotation marks omitted).
Appellant was sentenced on June 3, 2010. His judgment of sentence
was affirmed by this Court on May 10, 2011. Appellant did not seek
discretionary review in the Supreme Court of Pennsylvania. Thus, his
judgment of sentence became final on June 9, 2011. See 42 Pa.C.S. §
3
We note that a “ruling on retroactivity of the new constitutional law must
have been made prior to the filing of the petition for collateral review.”
Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002).
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9545(b)(3); Pa.R.A.P. 1113(a). Appellant then had until June 11, 2012,4 to
file a PCRA petition. Appellant’s PCRA petition was filed on October 16,
2012. Thus, it is patently untimely. Therefore, we review whether his
petition alleged and proved, as Appellant claims, the exception at section
9545(b)(1)(iii). See 42 Pa.C.S. § 9545(b)(1)(iii).
In his PCRA petition, Appellant did not identify “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.” See id. Appellant
did not affirmatively prove any of the three exceptions to the PCRA’s
timeliness requirement. See Marshall, supra. Thus, we agree with the
PCRA court that it could not address Appellant’s claims. See id.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2014
4
June 9, 2012 fell on Saturday. See 1 Pa.C.S. § 1908 (providing that when
last day of any period of time referred to in any statute falls on Saturday,
Sunday, or legal holiday, such day shall be omitted from computation).
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