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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
J-S08020-15

- 2 -

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 postconviction 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 postconviction 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.
J-S08020-15

- 3 -

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).
J-S08020-15

- 4 -

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).
J-S08020-15

- 5 -

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)
J-S08020-15

- 6 -

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)).
J-S08020-15

- 7 -

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 
J-S08020-15

- 8 -

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 wellestablished 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).
J-S08020-15

- 9 -

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