J-S08020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

HAROLD L. FLOYD

                            Appellant               No. 1688 EDA 2014


                 Appeal from the PCRA Order of May 27, 2014
             In the Court of Common Pleas of Philadelphia County
            Criminal Division at Nos.:  CP-51-CR-0636031-1981
                                        CP-51-CR-0813701-1981
                                        CP-51-CR-1034391-1981


BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:                       FILED FEBRUARY 17, 2015

       Harold Floyd challenges the May 27, 2014 order dismissing as untimely

his serial petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541, et seq. We affirm.

       The PCRA court has provided the following brief account of the factual

and procedural history underlying this case:

       Floyd was found guilty after a jury trial of two counts each of
       robbery, [possessing instruments of crime], criminal conspiracy,
       and one count of aggravated assault . . . on November 19,
       1981.[1] After post-sentence motions were denied, Floyd was
       sentenced . . . to serve a[n aggregate] term of thirty[-]five to


____________________________________________


1
       See 18 Pa.C.S. §§ 3701, 907, 903, 2701, respectively.
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       seventy years’ imprisonment on May 11, 1982.[2]       Floyd
       appealed the judgment of sentence and the Superior Court
       affirmed the judgment of sentence on October 12, 1984. The
       Supreme Court denied allocatur on April 18, 1985.

       Thereafter, Floyd filed multiple unsuccessful petitions for post-
       conviction relief. Floyd’s first post-conviction relief petition was
       denied on February 21, 1989, and upon appeal, the Superior
       Court affirmed the lower court’s decision on October 18, 1989.
       The Pennsylvania Supreme Court denied allocatur on April 3,
       1990. Floyd filed his second post[-]conviction relief petition,
       which was dismissed, and no appeal was taken. Floyd filed his
       third petition, and the petition was dismissed on June 14, 2000.
       On February 16, 2001, the Superior Court dismissed his appeal
       of the lower court’s decision due to Floyd’s failure to file a brief.
       Floyd filed a [petition for a] writ of habeas corpus on December
       15, 2003, which the PCRA court treated as his fourth PCRA
       petition,[3] and the court dismissed that petition as untimely on
       June 29, 2004. The Superior Court later affirmed that decision
       on August 9, 2005. No further appeal was filed.

       Floyd filed his current post[-]conviction petition on May 11,
       2012. After conducting an extensive and exhaustive review of
       the record and applicable case law, this [c]ourt determined that
       Floyd’s petition for post[-]conviction collateral relief was
       untimely filed and on May 27, 2014, this [c]ourt issued an order


____________________________________________


2
      In the only dockets that are available to us in the certified record,
Floyd’s convictions are listed as having been entered on the same date as
his May 11, 1982 sentencing. Whether the PCRA court or the docket are
incorrect in their indication regarding the entry of the verdict against Floyd
are of no moment in the instant appeal.
3
      As correctly noted by the trial court, the PCRA in its present
incarnation took effect on April 13, 1988.          Accordingly, Floyd’s post-
conviction petition filed before that date invoked the Post-Conviction Hearing
Act, the PCRA’s predecessor.          None of the temporary complications
introduced into the assessment of timeliness in the wake of the repeal and
replacement bear upon our analysis in the instant case. See PCRA Court
Opinion, 9/3/2014, at 2 n.1.




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       dismissing Floyd’s pro se PCRA petition.[4] Floyd thereafter filed
       a pro se notice of appeal.

PCRA Court Opinion (“P.C.O.”), 9/3/2014, at 1-2 (nomenclature modified;

footnote omitted).5

       Before this Court, Floyd raises the following issues:

       1.    Did the lower court err when denying Floyd an evidentiary
       hearing on the issues relating to material and genuine facts that
       can only be ascertained by a full and fair hearing?

       2.    Did the lower court abuse its discretion by denying a
       hearing to ascertain whether Floyd was denied fundamental
       fairness and due process in that trial, appellate, and PCRA
       counsel were constitutionally ineffective under the Sixth
       Amendment to the United States Constitution?

       3.    Did the lower court commit reversible error by ruling that
       the claims raised by Floyd did not trigger an exception to the
       PCRA time limit?

Brief for Floyd at iii (minor modifications for clarity).

       In dismissing Floyd’s latest PCRA petition as untimely, the PCRA court

necessarily determined that it lacked jurisdiction to review the claims set

forth in that petition.      See Commonwealth v. Leggett, 16 A.3d 1144,

1145 (Pa. Super. 2011).          Consequently, we must begin by reviewing the

____________________________________________


4
      The PCRA court filed the necessary twenty-day notice of intent to
dismiss pursuant to Pa.R.Crim.P. 907 on February 11, 2014.
5
       The PCRA court did not order Floyd to file (and Floyd did not file) a
concise statement of the errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). The court filed its excerpted September 3, 2014 opinion
in satisfaction of Pa.R.A.P. 1925(a).




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jurisdictional question implicated in Floyd’s third issue, which we find

dispositive, rendering Floyd’s remaining issues moot.6

        It is well-established that the PCRA time limits are jurisdictional, and

must be strictly construed, regardless of the potential merit of the claims

asserted. Leggett, 16 A.3d at 1145 (Pa. Super. 2011); Commonwealth v.

Murray, 753 A.2d 201, 202-03 (Pa. 2000), abrogated on other grounds,

943 A.2d 264 (Pa. 2008). “[N]o court may properly disregard or alter [these

filing requirements] in order to reach the merits of the claims raised in a

PCRA petition that is filed in an untimely manner.”              Murray, 753 A.2d

at 203; see Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783

(Pa. 2000).

        Despite facial untimeliness, a tardy PCRA petition nonetheless will be

considered timely if (but only if) the petitioner pleads and proves one of the

three     exceptions      to    the    one-year   time   limit     enumerated   in

subsection 9545(b) of the PCRA, which provides as follows:

        (1) Any petition under this subchapter, including a second or
        subsequent petition, shall be filed within one year of the date the
        judgment becomes final, unless the petition alleges and the
        petitioner proves that:

           (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
____________________________________________


6
     We review a PCRA court’s ruling to determine whether it is supported
by the evidence of record and is free of legal error. Commonwealth v.
Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011).




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          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 this section and has been held by that court to
          apply retroactively.

       (2) Any petition invoking an exception provided in
       paragraph (1) shall be filed within 60 days of the date the claim
       could have been presented.

42 Pa.C.S. § 9545(b).        When an appellant files a facially untimely petition

under the PCRA, and fails to plead and prove one or more of the exceptions

to the PCRA’s one-year jurisdictional time limit, the petition is untimely and

we must deny the appellant relief.             Gamboa-Taylor, 753 A.2d at 783.

Moreover, as reflected in the plain language of section 9545, even when one

of the exceptions may apply to a given petition, it will excuse the

untimeliness only if the petition was filed within sixty days of the date that

the conditions underlying the exception came to light. Id. at 784.

       It is undisputed that Floyd’s petition is facially untimely, having been

filed nearly twenty-seven years after Floyd’s sentence became final.7 Floyd

____________________________________________


7
      Floyd’s judgment of sentence was entered on May 11, 1982. After this
Court affirmed the judgment of sentence on October 12, 1984, Floyd sought
allowance of appeal before our Supreme Court, which denied review on April
18, 1985. Floyd’s judgment of sentence became final ninety days later,
when his opportunity to seek review in the United States Supreme Court
expired. At that time, the one-year time limit within which to file a PCRA
(Footnote Continued Next Page)


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cites three recent cases in asking this Court to apply the subsection

9545(b)(1)(iii) new constitutional right exception to the time bar, Martinez

v. Ryan, 132 S.Ct. 1309 (U.S. 2012), Lafler v. Cooper, 132 S.Ct. 1376

(U.S. 2012), and Missouri v. Frye, 132 S.Ct. 1399 (U.S 2012), each of

which implicates the standard of conduct imposed upon trial counsel in

advising his or her client regarding the consequences of entering a guilty

plea.     None of these cases support Floyd’s invocation of subsection

9545(b)(1)(iii).

        As noted, supra, subsection 9545(b)(1)(iii) provides an exception to

the PCRA’s one-year time bar when “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.”    The exception is

properly invoked only when the petitioner files his petition within sixty days

of the issuance of the opinion in question. 42 Pa.C.S. § 9545(b)(2). Floyd

meets this last criterion as to all three cases: He filed his petition on May

11, 2012, fewer than sixty days after the decisions issued in Martinez

(March 20, 2012), Lafler (March 21, 2012), and Frye (March 21, 2012).


                       _______________________
(Footnote Continued)

petition began to run, and it expired on or about July 17, 1986.
Commonwealth v. Feliciano, 69 A.3d 1270, 1275 (Pa. Super. 2013)
(citing 42 Pa.C.S. § 9545(b)(3); Commonwealth v. Owens, 718 A.2d 330,
331 (Pa. Super. 1998)).




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However, to successfully invoke the exception Floyd also must establish that

the right at issue is a new constitutional right that has been held to apply

retroactively.   Commonwealth        v.   Feliciano,   69   A.3d   1270,   1276

(Pa. Super. 2013).

      Floyd’s invocation of Martinez is substantively unavailing, because

this Court has held that it establishes ground only for relief under federal

law, not the PCRA. In Martinez, the Supreme Court of the United States

recognized that, for purposes of federal habeas corpus relief, “[i]nadequate

assistance of counsel at initial-review collateral proceedings may establish

cause for a prisoner’s procedural default of a claim of ineffective

assistance at trial.”    132 S.Ct. at 1315.    However, we have held that,

“[w]hile Martinez represents a significant development in federal habeas

corpus law, it is of no moment with respect to the way Pennsylvania courts

apply the plain language of the time bar set forth in section 9545(b)(1) of

the PCRA.” Commonwealth v. Saunders, 60 A.3d 162, 165 (Pa. Super.

2013). Consequently, Martinez does not establish a rule, new or otherwise,

that bears upon his claims.

      With regard to Lafler and Frye, in Feliciano this Court rejected the

proposition that either Lafler or Frye created a new constitutional right:

      [W]e disagree with Appellant that Frye and Lafler created a
      new constitutional right. “The right to effective assistance of
      counsel during the plea bargaining process has been recognized




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       for decades.” Commonwealth v. Lewis, 63 A.3d 1274, 1280
       (Pa. Super. 2013) (citing Hill v. Lockhart, 474 U.S. 52, 59
       (1985) (holding that “the two-part Strickland . . . test[8]
       applies to challenges to guilty pleas based on the ineffective
       assistance of counsel”); Padilla v. Kentucky, 559 U.S. 356,
       364 (2010) (“Before deciding whether to plead guilty, a
       defendant is entitled to the effective assistance of competent
       counsel.” (internal quotation marks omitted))). In Frye, the
       United State Supreme Court merely clarified that this well-
       established right “extends to the negotiation and consideration
       of plea offers that lapse or are rejected.” 132 S.Ct. at 1404
       (emphasis added). In other words, the Frye Court held “that, as
       a general rule, defense counsel has the duty to communicate
       formal offers from the prosecution to accept a plea on terms and
       conditions that may be favorable to the accused.” Id. at 1408.
       In determining whether counsel has satisfied this obligation, the
       two-part test set forth in Strickland applies.3 See id. at 1409.

       ______________________
          3
             That test requires that a defendant show that counsel
          (1) had no reasonable basis for their actions or inactions,
          and (2) the defendant suffered prejudice as a result of
          counsel’s conduct. In Pennsylvania, our Supreme Court
          has added one additional component to the Strickland
          test, requiring that a defendant also prove that the
          underlying    claim    has   arguable     merit.       See
          Commonwealth v. Bennett, 57 A.3d 1185, 1195
          (Pa. 2012).

                                         ****

       It is apparent that neither Frye nor Lafler created a new
       constitutional right. Instead, these decisions simply applied the
       Sixth Amendment right to counsel, and the Strickland test for
       demonstrating counsel’s ineffectiveness, to the particular
       circumstances at hand, i.e. where counsel’s conduct resulted in a
       plea offer lapsing or being rejected to the defendant’s detriment.
       Accordingly, Appellant’s reliance on Frye and Lafler in an
       attempt      to    satisfy    the    timeliness   exception     of
       [sub]section 9545(b)(1)(iii) is unavailing.
____________________________________________


8
       See Strickland v. Washington, 466 U.S. 668 (1984).



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Feliciano, 69 A.3d 1270 at 1276-77 (citations modified; footnotes omitted).

      In short, Martinez offers Floyd no quarter because we have held that

it promulgated a rule that applies only to federal habeas corpus proceedings.

And Lafler and Frye did not individually or collectively instantiate a new

constitutional rule, as must be the case to invoke subsection 9545(b)(1)(iii)

for relief from the PCRA’s time bar.    Inasmuch as Floyd proffers no other

relevant basis upon which to forgive the facial untimeliness of the PCRA

petition at issue in the instant case, the PCRA court clearly did not err in

deeming Floyd’s petition untimely and concluding that it lacked jurisdiction

to consider the merits of Floyd’s claims.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/17/2015




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