Com. v. Lloyd, J. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES EDWARD LLOYD, JR. :
:
Appellant : No. 752 WDA 2021
Appeal from the PCRA Order Entered May 24, 2021
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0015324-1992
BEFORE: PANELLA, P.J., OLSON, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED: JULY 29, 2022
James Edward Lloyd, Jr. (“Lloyd”), appeals from the order dismissing
his petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1
We affirm.
In 1992, Lloyd, while dressed as a woman and wearing a wig, lipstick,
facial foundation, and stuffing in his chest to make it appear as though he had
breasts, entered a bank in Pittsburgh. Lloyd pointed a gun at a bank
customer, and thereafter demanded money from several tellers before
absconding with approximately $8,000. Police apprehended Lloyd one month
later, and two bank employees identified him as the robber. The
Commonwealth charged Lloyd with three counts of robbery, and a jury
convicted him on all counts. The trial court imposed an aggregate sentence
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1 See 42 Pa.C.S.A. §§ 9541-9546.
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of thirty to sixty years in prison. Lloyd filed a counseled direct appeal alleging,
inter alia, ineffective assistance of trial counsel. This Court affirmed the
judgment of sentence but remanded for an evidentiary hearing on the
ineffectiveness claim. See Commonwealth v. Lloyd, 660 A.2d 122 (Pa.
Super. 1995) (unpublished memorandum).
Upon remand, the trial court appointed Timothy Urich, Esquire, to
represent Lloyd and thereafter conducted an evidentiary hearing. Following
the hearing, the trial court found no ineffectiveness by trial counsel and
reinstated Lloyd’s prior sentence. Lloyd appealed, and on March 12, 1996,
this Court affirmed the judgment of sentence. See Commonwealth v.
Lloyd, 678 A.2d 829 (Pa. Super 1996) (unpublished memorandum). On
March 20, 1996, Attorney Urich informed Lloyd via written correspondence
that this Court had affirmed his judgment of sentence and that, if he wished
to file a petition for allowance of appeal with our Supreme Court, he must do
so by April 12, 1996. Attorney Urich suggested that Lloyd file a pro se petition
and request court-appointed counsel for the appeal. Attorney Urich did not
indicate that he had taken any steps to withdraw from representation, or that
he intended to seek permission to withdraw.
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On April 12, 1996, Lloyd filed a pro se petition for allowance of appeal.2
The prothonotary of the Pennsylvania Supreme Court received the petition on
April 15, 1996. On that same date, the prothonotary returned the petition to
Lloyd via correspondence explaining that the petition was untimely, as it was
required to be filed on or before April 11, 1996. More than one year later, on
July 7, 1997, Lloyd filed a pro se petition for allowance of appeal nunc pro
tunc, which the Supreme Court prothonotary accepted for filing. On
September 12, 1997, our Supreme Court denied allowance of appeal. See
Commonwealth v. Lloyd, 83 W.D. 1997 (Pa. 1997).
In 1998, Lloyd filed a pro se PCRA petition, his first. The PCRA court
appointed Diana Stavroulakis, Esquire, as counsel, who filed an amended
petition asserting ineffectiveness of trial counsel. The PCRA court dismissed
the petition as untimely. Attorney Stavroulakis filled a notice of appeal and
petitioned to withdraw from representation, noting that Lloyd requested that
she do so. This Court affirmed the dismissal and our Supreme Court denied
allowance of appeal. See Commonwealth v. Lloyd, 782 A.2d 1056 (Pa.
Super. 2001), appeal denied, 568 Pa. 717 (Pa. 2002).
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2 Lloyd concedes that he represented to the PCRA court that he “filed” the
petition on April 12, 1996. See Lloyd’s Brief at 19; see also Response to Rule
907 Notice, 5/14/21, at ¶ 28 (stating that “acting on counsel’s advice, [Lloyd]
filed his [petition for] allowance of appeal on what he believed was the final
day, April 12, 1996”).
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On March 25, 2020, Lloyd filed the instant pro se PCRA petition, his
second, asserting Attorney Urich’s per se ineffectiveness for failing to file a
timely petition for allowance of appeal and abandonment by counsel. Lloyd
claimed that Attorney Urich stated in his March 20, 1996 correspondence that
he had withdrawn from representation. Lloyd further claimed that he did not
discover that Attorney Urich had not withdrawn from representation until he
obtained a copy of the trial court docket in September of 2019. Lloyd
additionally asserted that Attorney Stavroulakis was ineffective for not
discerning Attorney Urich’s per se ineffectiveness and abandonment. The
PCRA court appointed Suzanne Swan, Esquire, as counsel. Attorney Swan
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) (en banc). In the “no-merit” letter,
Attorney Swan concluded that Lloyd’s ineffectiveness claims were time-
barred. The PCRA court granted Attorney Swan’s petition to withdraw and
issued a Pa.R.Crim.P. 907 notice of its intent to dismiss the petition without a
hearing. Lloyd did not respond to the notice. On October 7, 2020, the PCRA
court dismissed the petition.
On October 13, 2020, Lloyd filed a motion for extension of time to file a
response to the Rule 907 notice. On November 3, 2020, the PCRA court issued
an order vacating the October 7, 2020 dismissal order and granting Lloyd
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leave to file a response to the Rule 907 notice.3 Lloyd filled a second pro se
motion for extension of time to file a response to the Rule 907 notice. The
PCRA court granted the motion. Lloyd then filed a pro se response to the Rule
907 notice. On May 24, 2021, the PCRA court dismissed the petition.
Thereafter, Lloyd filed a timely pro se notice of appeal.4 The PCRA court
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3 On November 5, 2020, Lloyd filed a notice of appeal of the October 7, 2020
dismissal order, apparently not yet aware that it had been vacated.
4 The clerk of courts received Lloyd’s pro se notice of appeal on June 24, 2021,
which was thirty-one days after the entry of the May 24, 2021 dismissal order.
See Pa.R.A.P. 903(a) (providing that the notice of appeal shall be filed within
thirty days after the entry of the order from which the appeal is taken). While
the notice appears facially untimely, under the “prisoner mailbox rule,” a pro
se prisoner’s document is deemed filed on the date he delivers it to prison
authorities for mailing. See Commonwealth v. Jones, 700 A.2d 423, 426
(Pa. 1997). A prisoner bears the burden of proving delivery of the document
to prison authorities within the prescribed time period for its filing. Id.Pursuant to our Rules of Appellate Procedure, a prisoner can meet this burden
by producing “a properly executed prisoner cash slip or other reasonably
verifiable evidence.” Pa.R.A.P. 121(f); see also Jones, 700 A.2d at 426
(holding that reasonably verifiable evidence includes a Postal Form 3817
certificate of mailing, a prison “cash slip” noting a prisoner account deduction
and the date of mailing, a prisoner’s affidavit attesting to the date of deposit,
and evidence regarding the operating procedures of the mail delivery service
in question). Where the facts concerning the timeliness of the filing are in
dispute, a remand for an evidentiary hearing may be warranted. See Jones,
700 A.2d at 426 n.3. Our review of the certified record reflects that Lloyd
indicated in his docketing statement that he is incarcerated, that he mailed
the notice of appeal on June 21, 2021, and that the prisoner mailbox rule
applies. The notice of appeal and the attached certificate of service are dated
June 21, 2021. However, Lloyd has not presented this Court with any
reasonably verifiable evidence demonstrating the date on which he deposited
the notice of appeal with prison authorities. Nevertheless, where the opposing
party does not challenge the timeliness of the appeal and the prisoner’s
assertion of timeliness is plausible, we may find the appeal timely without
remanding for an evidentiary hearing. See Commonwealth v. Cooper, 710
(Footnote Continued Next Page)
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appointed J. Richard Narvin, Esquire, as counsel, who filed a court-ordered
Pa.R.A.P. 1925(b) concise statement. The PCRA court then issued a Rule
1925(a) opinion.
Lloyd raises the following issues for our review:
1. Did the PCRA court err when it dismissed [Lloyd’s second] pro
se PCRA petition without hearing when [Lloyd] set forth facts,
both of record and off record which, if proven would have
entitled him to relief? More specifically:
a. [Lloyd] was abandoned by both direct appeal counsel[,
Attorney Urich,] and first PCRA counsel[, Attorney
Stavroulakis]. [Attorney Urich] for failure to file a petition
for allowance of appeal and [Attorney Stavroulakis] for
failure to identify the claim.
b. [Lloyd] was unaware of [Attorney Urich’s] abandonment
until September 6, 2019, therefore allowing for an exception
to the filing time requirements of both 42 Pa.C.S.[A.]
9545(b)(1)(i) and (ii), contrary to the conclusions set forth
in PCRA counsel’s no-merit letter.
2. Was [Lloyd] unlawfully and prejudicially deprived of his
established right to effective assistance of counsel in filing a
petition for allowance of appeal with the Pennsylvania Supreme
Court when it was by [Attorney Urich’s] specific per se errors
which caused the loss and this was [Lloyd’s] first opportunity
to raise the claim?
3. Was PCRA counsel ineffective in failing to raise these claims?
Lloyd’s Brief at 3 (unnecessary capitalization omitted).
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A.2d 76, 79 (Pa. Super. 1998); see also Commonwealth v. Patterson, 931
A.2d 710, 714 (Pa. Super. 2007) (deeming an appeal timely based on the date
on the notice of appeal and date of receipt three days after the thirty-day
period expired). Here, the Commonwealth does not challenge the timeliness
of the appeal and Lloyd’s assertion of timeliness is plausible. We therefore
conclude that the appeal is timely.
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Our standard of review of an order dismissing a PCRA petition is well-
settled.
We review an order dismissing a petition under the PCRA in
the light most favorable to the prevailing party at the PCRA level.
This review is limited to the findings of the PCRA court and the
evidence of record. We will not disturb a PCRA court’s ruling if it
is supported by evidence of record and is free of legal error. This
Court may affirm a PCRA court’s decision on any grounds if the
record supports it. Further, we grant great deference to the
factual findings of the PCRA court and will not disturb those
findings unless they have no support in the record. However, we
afford no such deference to its legal conclusions. Where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
Under the PCRA, any petition, including a second or subsequent petition,
must be filed within one year of the date the judgment becomes final. See
42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence 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. Id. § 9545(b)(3). The PCRA’s
timeliness requirements are jurisdictional in nature, and a court may not
address the merits of the issues raised if the PCRA petition was not timely
filed. See Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
This Court previously determined that Lloyd’s judgment of sentence
became final on April 11, 1996, when the period in which to file a timely
petition for allowance of appeal with our Supreme Court expired. See Lloyd,
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678 A.2d 829 (unpublished memorandum at 4) (explaining that the filing and
subsequent denial of Lloyd’s petition for allowance of appeal nunc pro tunc did
not operate to alter the date on which his judgment of sentence became final);
see also 42 Pa.C.S.A. § 9545(b)(3) (providing that a judgment of sentence
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); Pa.R.A.P.
1113 (providing that a petition for allowance of appeal shall be filed with the
Prothonotary of the Pennsylvania Supreme Court within thirty days of the
entry of the Superior Court order).5 Lloyd had until April 11, 1997, to file the
instant PCRA Petition, but did not do so until March 25, 2020. Thus, Lloyd’s
petition is facially untimely under the PCRA.
Pennsylvania courts may consider an untimely PCRA petition if the
petitioner explicitly pleads and proves one of three exceptions set forth under
section 9545(b)(1), which provides:
(b) Time for filing petition.--
(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 laws of this
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5Lloyd incorrectly asserts that his judgment of sentence became final on May
11, 1996. See Lloyd’s Brief at 20.
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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.
42 Pa.C.S.A. § 9545(b)(1). Any petition attempting to invoke one of these
exceptions must “be filed within one year of the date the claim could have
been presented.” Id. § 9545(b)(2).
Relevantly, section 9545(b)(1)(ii) permits an exception to the PCRA’s
time bar when the petitioner alleges and proves that there were facts that
were unknown to him, and that he could not have ascertained those facts by
the exercise of due diligence. See Commonwealth v. Bennett, 930 A.2d
1264, 1270-72 (Pa. 2007). The due diligence inquiry is fact-sensitive and
dependent upon the circumstances presented. See Commonwealth v.
Burton, 121 A.3d 1063, 1070 (Pa. Super. 2015) (en banc). “[D]ue diligence
requires neither perfect vigilance nor punctilious care, but rather it requires
reasonable efforts by a petitioner, based on the particular circumstances, to
uncover facts that may support a claim for collateral relief.” Id. at 1071. The
focus of the exception found at section 9545(b)(1)(ii) is on newly discovered
facts, not on newly discovered sources that corroborate previously known
facts. See Commonwealth v. Robinson, 185 A.3d 1055, 1064 n.4 (Pa.
Super. 2018) (en banc).
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Our courts have generally rejected attempts to circumvent the
timeliness requirements of the PCRA by asserting prior counsel’s
ineffectiveness as a newly discovered fact for purposes of the timeliness
exception set forth in section 9545(b)(1)(ii). See Commonwealth v.
Gamboa-Taylor, 753 A.2d 780, 785 (Pa. 2000) (holding that the “fact” that
current counsel discovered prior PCRA counsel had failed to develop an issue
of trial counsel’s ineffectiveness was not a newly-discovered fact qualifying for
an exception to the PCRA time limitations). However, our Supreme Court has
ruled that the analysis set forth in Gamboa-Taylor and subsequent case law
does not apply to situations when counsel abandons his client for purposes of
appeal. See Bennett, 930 A.2d at 1273 (recognizing a distinction between
situations in which counsel has narrowed the ambit of appellate review by the
claims he has raised or foregone versus those instances where counsel has
failed to file an appeal); see also Commonwealth v. Peterson, 192 A.3d
1123, 1129 (Pa. 2018) (clarifying the distinction between “claims of
ineffectiveness for partial deprivations of appellate review, [such as] attorney
errors in narrowing the issues for review, from instances in which petitioners
assert claims of ineffectiveness resulting in complete deprivations of
appellate review, [such as] attorney errors that resulted in petitioners being
dispossessed of any opportunity for appellate review”) (emphasis in original).
In our Supreme Court’s view, the complete deprivation of appellate review is
the functional equivalent of having no counsel at all, and constitutes a form of
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ineffectiveness per se. Id.Accordingly, where counsel’s ineffectiveness results in the complete
deprivation of appellate review, such ineffectiveness may constitute a newly
discovered fact for purposes of section 9545(b)(1)(ii). See Bennett, 930
A.2d at 1273 (holding that PCRA counsel’s failure to file an appellate brief
which resulted in the dismissal of petitioner’s appeal constituted abandonment
which was per se prejudicial and which constituted a claim within the ambit of
section 9545(b)(1)(ii)); see also Commonwealth v. Williamson, 21 A.3d
236, 242 (Pa. Super.2011) (extending Bennett to include counsel’s failure to
timely file a petition for allowance of appeal with the Pennsylvania Supreme
Court after this Court affirmed the dismissal of his first PCRA petition).
In the instant matter, Lloyd concedes that his petition is facially untimely
but asserts that his claims of per se ineffectiveness and abandonment by
Attorney Urich entitle him to relief under section 9545(b)(1)(ii) pursuant to
Bennett, Peterson, and Williamson. We agree that Bennett applies to the
facts before us, as Attorney Urich’s failure to file a timely petition for allowance
of appeal did not merely narrow the scope of claims for appellate review, but
altogether denied Lloyd discretionary review in our Supreme Court of this
Court’s order affirming his judgment of sentence. Consequently, Attorney
Urich’s failure to file a petition for allowance of appeal may qualify as a newly-
discovered fact within the ambit of section 9545(b)(1)(ii). See Williamson,
21 A.3d at 242 (holding that counsel’s failure to file a timely petition for
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allowance of appeal could be considered a newly discovered fact for purposes
of section 9545(b)(1)(ii)).
Importantly, however, when asserting ineffectiveness per se or
abandonment by counsel resulting in the complete deprivation of appellate
review, a petitioner must still plead and prove the specific elements of section
9545(b)(1)(ii)); namely, that the facts were unknown to him and that he could
not discover them through the exercise of due diligence. See Bennett, 930
A.2d at 1274. Additionally, as with each of the exceptions set forth in section
9545(b)(1), the petitioner must plead the exception within one year of the
date the claim could have been presented. See 42 Pa.C.S.A. § 9545(b)(2).
Thus, Lloyd was required to plead and prove that Attorney Urich’s inactions
were unknown to him, that he could not have discovered those facts by the
exercise of due diligence, and that the instant petition was filed within one
year of the date the claim could have been presented. See 42 Pa.C.S.A. §
9545(b)(1)(ii), (2).
Here, Lloyd concedes that he was aware of Attorney Urich’s failure to
file a petition for allowance of appeal upon his receipt of counsel’s March 20,
1996 letter advising him of this fact. See Lloyd’s Brief at 20. Nevertheless,
Lloyd claims that he was unaware of the fact that such failure constituted per
se ineffectiveness and abandonment until he received a copy of the lower
court docket in September of 2019 and learned that Attorney Urich had never
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withdrawn from representation.6 Lloyd contends that the instant petition,
filed on March 25, 2020, was filed within one year of his discovery of these
facts.7
We are not persuaded by Lloyd’s claims of ignorance. Lloyd candidly
admits that he was aware in March of 1996 that Attorney Urich failed to file a
petition for allowance of appeal. Lloyd further concedes that, in his March 20,
1996 letter, Attorney Urich advised Lloyd to file a pro se petition for allowance
of appeal and to request new counsel for the appeal. Lloyd also understood
that Attorney Urich provided him with an incorrect deadline for the filing of a
petition for allowance of appeal, as Lloyd received correspondence from the
protonotary of the Supreme Court on or about April 15, 1996, advising him
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6 Although Lloyd insists that Attorney Urich stated in the letter that he had
withdrawn from representation, our review of the letter confirms that no
mention whatsoever was made therein regarding counsel’s withdrawal from
representation. See Urich Letter, 3/20/96, at 1.
7 Lloyd additionally argues that the prothonotary of the Supreme Court
“interfered with his right to bring his appeal” because the letter from the
prothonotary “made no mention of any evaluation of the postmark of . . .
Lloyd’s correspondence containing his request for allowance of appeal.”
Lloyd’s Brief at 19 (unnecessary capitalization omitted). Lloyd asserts that, if
the prisoner mailbox rule had been considered, his pro se petition for
allowance of appeal may have been timely if he delivered the petition
authorities on or before April 11, 1996. However, Lloyd did not raise this issue
before the PCRA court. See Pa.R.A.P. 302(a) (providing that issues not raised
in the lower court are waived and cannot be raised for the first time on
appeal). Therefore, he failed to preserve it for our review. Moreover, as
explained above, Lloyd concedes that he represented to the PCRA court that
he “filed” the petition on April 12, 1996. See Lloyd’s Brief at 19; see also
Response to Rule 907 Notice, 5/14/21, at ¶ 28.
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that his pro se petition for allowance of appeal which he filed on the date
indicated by Attorney Urich, was rejected for filing because it was received
one day late. Thus, the record establishes that Lloyd knew in March of 1996
that, as a result of Attorney Urich’s ineffectiveness, he was completely
deprived of discretionary appellate review in our Supreme Court of this Court’s
order affirming his judgment of sentence. Accordingly, pursuant to section
9545(b)(2), Lloyd was required to file a petition asserting Attorney Urich’s
ineffectiveness for failing to file a petition for allowance of appeal within one
year of the date he received Attorney Urich’s correspondence (i.e., on or about
March 20, 1997). Lloyd did not assert Attorney Urich’s ineffectiveness until
he filed his second pro se PCRA petition on March 25, 2020. Therefore,
because the instant petition was filed more than one year after Lloyd
discovered that Attorney Urich failed to file a petition for allowance of appeal,
that particular ineffectiveness claim was time-barred and the PCRA court
lacked jurisdiction to consider it.8
Lloyd additionally claims that he was unaware that Attorney Urich failed
to withdraw from representation until he received a copy of the lower court
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8 The PCRA court determined that Lloyd’s ineffectiveness claim regarding
Attorney Urich was “at its heart, a claim for ineffective assistance of counsel
th[at] does not save the untimeliness of the claim.” PCRA Court Opinion,
9/20/21, at 4. Presumably, the trial court concluded that it lacked jurisdiction
over Lloyd’s ineffectiveness claim regarding Attorney Urich because it fell
within the Gamboa-Taylor line of cases, rather than Bennett and its
progeny. However, this Court may affirm on any valid basis appearing of
record. See Ford, 44 A.3d at 1194.
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docket in September of 2019. However, this claim is based entirely on Lloyd’s
inaccurate assertion that Attorney Urich stated in the March 20, 1996 letter
that he had withdrawn from representation. Our review of that letter reveals
that Attorney Urich did not advise Lloyd that he had withdrawn from
representation or indicate that he intended to withdraw from representation.
See Urich Letter, 3/20/96, at 1. Indeed, the March 20, 1996 letter is devoid
of any discussion of Attorney Urich’s withdrawal from representation. Id.Given that Attorney Urich’s March 20, 1996 letter did not advise Lloyd that he
had withdrawn or intended to withdraw from representation, Lloyd’s review of
the lower court docket in September of 2019 appears to have provided Lloyd
with a newly discovered source that corroborated a previously known fact,
rather a newly-discovered fact. See Robinson, 185 A.3d at 1064 n.4.
Moreover, Lloyd has not explained why he could not have discovered that
Attorney Ulrich neither sought nor was granted permission from the trial court
to withdraw from representation through the exercise of due diligence upon
receipt of Attorney Urich’s March 20, 1996 correspondence.
Most importantly, however, Attorney Urich’s failure to withdraw from
representation did not result in the complete deprivation of Lloyd’s appellate
rights; rather, it was counsel’s failure to file a timely petition for allowance of
appeal that caused such a deprivation. Accordingly, Attorney Urich’s failure
to withdraw does not constitute a newly-discovered fact for purposes of
section 9545(b)(1)(ii). See Bennett, 930 A.2d at 1273; see also Gamboa-
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Taylor, 753 A.2d at 785. For this reason, the PCRA court properly determined
that it lacked jurisdiction to consider it.
Lloyd’s ineffectiveness claim regarding Attorney Stavroulakis is equally
unavailing. Lloyd claims that Attorney Stavroulakis was ineffective for failing
to raise Attorney Urich’s per se ineffectiveness and abandonment in the
amended PCRA petition that she filed on his behalf. Lloyd claims that, because
Attorney Stavroulakis failed to recognize Attorney Urich’s ineffectiveness, he
has “never had a meaningful review of his [direct appeal] in clear negation of
his right to due process.” Lloyd’s Brief at 17-18. Lloyd claims that he was
unaware of Attorney Stavroulakis’ ineffectiveness until he received a copy of
the lower court docket in September of 2019 and learned that Attorney Urich
had never withdrawn from representation. Lloyd contends that the instant
petition, filed on March 25, 2020, was filed within one year of his discovery of
these facts.
As explained above, our courts have generally rejected attempts to
circumvent the timeliness requirements of the PCRA by asserting prior
counsel’s ineffectiveness as a newly discovered fact for purposes of the
timeliness exception set forth in section 9545(b)(1)(ii). See Gamboa-
Taylor, 753 A.2d at 785. Therefore, unless prior counsel’s ineffectiveness
resulted in the complete deprivation of appellate review, the “fact” that current
counsel discovered prior PCRA counsel’s failure to develop an issue of trial
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counsel’s ineffectiveness is not a newly-discovered fact qualifying for an
exception to the PCRA time limitations. Id.
Here, Lloyd claims that Attorney Stavroulakis’s failure to recognize
Attorney Urich’s ineffectiveness resulted in the deprivation of appellate review
of his direct appeal. However, this is simply not the case. Pursuant to section
9545(b)(2), Lloyd was required to file a petition asserting Attorney Urich’s
ineffectiveness for failing to file a petition for allowance of appeal within one
year of the date he received Attorney Urich’s correspondence (i.e., on or about
March 20, 1997). Lloyd filed his first pro se PCRA petition in September 1998.
By that time, the one-year period in which Lloyd could file a timely PCRA
petition asserting Attorney Urich’s ineffectiveness had expired. Thus, when
the PCRA court appointed Attorney Stavroulakis to represent Lloyd and to file
an amended petition, she could not have raised a timely ineffectiveness claim
regarding Attorney Urich. See Commonwealth v. Spotz, 896 A.2d 1191,
1210 (Pa. 2006) (holding that counsel cannot be ineffective for failing to raise
a meritless claim). Therefore, Lloyd’s ineffectiveness claim regarding Attorney
Stavroulakis does not constitute a newly-discovered fact for purposes of the
timeliness exception set forth in section 9545(b)(1)(ii). Accordingly, the PCRA
court properly determined that it lacked jurisdiction to consider it.
For these reasons, we conclude that the PCRA court lacked jurisdiction
to consider Lloyd’s ineffectiveness claims because the petition was untimely
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and he failed to plead and prove an exception to the PCRA’s time bar.
Accordingly, we affirm the PCRA court’s order dismissing Lloyd’s petition. 9
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/29/2022
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9 Lloyd cites to our Supreme Court’s recent decision in Commonwealth v.
Bradley, 261 A.3d 381, 405 (Pa. 2021), wherein the Court ruled that a PCRA
petitioner may raise claims of ineffectiveness of PCRA counsel at the first
opportunity to do so, even if on appeal. Lloyd argues that Bradley “should
control his present claim.” Lloyd’s Brief at 22. Lloyd asserts that “within PCRA
counsel was ineffective for failing to raise the first PCRA counsel’s
ineffectiveness for failing to properly review the record and discover and plead
the exception to the timeliness requirements of [section] 9545(b)(1).” Id.To the extent that Lloyd is attempting to raise a claim that Attorney Swan was
ineffective for failing to file an amended petition asserting that Attorney
Stavroulakis was ineffective for failing to raise Attorney Urich’s ineffectiveness
in the amended petition she filed on his behalf, this claim merits no relief.
Attorney Swan was not ineffective for the same reason that Attorney
Stavroulakis was not ineffective. As explained above, by the time Attorney
Stavroulakis was appointed as PCRA counsel for Lloyd, his claim regarding
Attorney Urich’s per se ineffectiveness and abandonment was time-barred.
Thus, Attorney Swan cannot be ineffective for failing to assert a meritless
claim. See Spotz, 896 A.2d at 1210.
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