J-S30030-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JEFFREY GIDDINGS : : Appellant : No. 283 EDA 2023
Appeal from the PCRA Order Entered January 17, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0514881-1991
BEFORE: BENDER, P.J.E., LAZARUS, J., and SULLIVAN, J.
MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 12, 2023
Jeffrey Giddings appeals pro se from the order dismissing his petition
filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-
9546. Because Giddings’ petition is untimely and he has not satisfied any
exception to the PCRA’s timeliness requirement,1 we affirm.
In 1992, following a bench trial, the Honorable David N. Savitt convicted
Giddings of four counts of robbery and one count each of first-degree murder,
criminal conspiracy and possessing an instrument of crime. On October 21,
1992, the court sentenced Giddings to life imprisonment. This Court affirmed
Giddings’ judgment of sentence. Commonwealth v. Giddings, 640 A.2d ____________________________________________
1 These exceptions are: (1) the failure to raise the claim previously was due to governmental interference; (2) the facts of the claim were unknown to the petitioner and could not have been ascertained by due diligence; or (3) a newly-recognized constitutional right that the United States Supreme Court or Pennsylvania Supreme Court has been held to apply retroactively. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). J-S30030-23
471 (Pa. Super. 1994) (Table). Giddings did not seek review in the
Pennsylvania Supreme Court and, thus, his judgment of sentence became final
on February 28, 1994, when his time for seeking such review expired. See
42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 1113 (allowing thirty days to file petition
for allowance of appeal).
Approximately eight years later, on February 6, 2002, Giddings filed a
pro se PCRA petition, his first, in which he averred that his trial counsel was
ineffective for failing to file a petition for allowance of appeal. The PCRA court
appointed counsel and ultimately permitted counsel to withdraw pursuant to
Turner/Finley.2 On October 2, 2002, the PCRA court dismissed Giddings’
PCRA petition and, on collateral appeal, this Court affirmed the dismissal of
the petition. See Commonwealth v. Giddings, 832 A.2d 536 (Pa. Super.
2003) (Table). Giddings did not file a petition for allowance of appeal.
Over the next several years, Giddings filed a second and third PCRA
petition, each of which was dismissed as untimely. In 2016, Giddings filed his
fourth PCRA petition, pro se, seeking relief under Miller v. Alabama, 567
U.S. 460 (2012) and Montgomery v. Louisiana, 577 U.S. 460 (2016).3 The ____________________________________________
2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
3 In Miller, the United States Supreme Court held that it is unconstitutional for state courts to impose an automatic life sentence without possibility of parole upon a homicide defendant for a murder committed while the defendant was a juvenile. The United States Supreme Court later held in Montgomery that its decision in Miller applies retroactively. Giddings was 19 years old at the time of the murder.
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PCRA court dismissed that petition, and this Court affirmed. See
Commonwealth v. Giddings, 1092 EDA 2017 (Pa. Super. filed May 16,
2018) (unpublished memorandum decision).
On August 20, 2021, Giddings filed the instant pro se PCRA petition,4
his fifth. In his petition, Giddings alleges appointed counsel’s 2002 “no-merit”
letter “perpetrated a fraud on the court by alleging the claims [of trial
counsel’s ineffectiveness made in his 2002 PCRA petition] had no merit.” See
PCRA Petition, 8/20/21, at 2; Appellant’s Brief, at 7.
We review the dismissal of a PCRA petition to determine “whether the
PCRA court’s findings of fact are supported by the record, and whether its
conclusions of law are free from legal error.” Commonwealth v. Busanet,
54 A.3d 35, 45 (Pa. 2012). A PCRA petition must be filed within one year of
the date that the petitioner’s judgment of sentence becoming final. 42
Pa.C.S.A. § 9545(b)(1). “A judgment 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 the time
for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). The timeliness of a PCRA
petition is jurisdictional. If a PCRA petition is untimely, a court lacks
____________________________________________
4 Giddings’ submission was captioned as a motion to reconsider the order dismissing his 2002 PCRA petition. See 42 Pa.C.S.A. § 9542 (stating PCRA petition “shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies”). We agree with the PCRA court that Giddings’ claim is cognizable under the PCRA. See 42 Pa.C.S.A. § 9543(a)(2)(ii) (encompassing claims of ineffective assistance of counsel).
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jurisdiction to address its substantive claims. Commonwealth v. Wharton,
886 A.2d 1120, 1124 (Pa. 2005).
Here, Giddings’ judgment of sentence became final in 1994. His
petition, filed on August 20, 2021, is facially untimely. Giddings avers
appointed counsel should not have been permitted to withdraw and counsel’s
failure to file a petition for allowance of appeal in 2002 amounted to ineffective
assistance of counsel. See PCRA Petition, 8/20/21, at 1. As such, Giddings
neither pleads nor proves any exception to the one-year timeliness
requirement. See Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785
(Pa. 2000); see also Commonwealth v. Abu-Jamal, 833 A.2d 719, 725-
726 (Pa. 2003) (PCRA petitioner cannot establish “new fact” exception merely
by alleging possible ineffective assistance of counsel claims were unknown to
petitioner and could not have been discovered until after present counsel
reviewed petitioner’s file). Thus, as Giddings’ ineffectiveness claim did not
constitute a “new fact” for purposes of section 9545(b)(1)(ii), the PCRA court
lacked jurisdiction to consider its merits.
Because Giddings has not shown that any statutory exception to the
PCRA’s one-year time limit applies to the claims of ineffective assistance of
PCRA counsel that he asserted in his 2002 PCRA petition, the trial court
correctly held that Giddings’ 2021 PCRA petition was untimely.5 Giddings,
5 We note that our Supreme Court’s decision in Commonwealth v. Bradley,
261 A.3d 381 (Pa. 2021), which held a PCRA petitioner may, after PCRA court (Footnote Continued Next Page)
-4- J-S30030-23
therefore, is ineligible for relief. See 42 Pa.C.SA. § 9545(b)(1)(i-iii).
Accordingly, we affirm the PCRA court’s order dismissing Giddings’ petition.
Order affirmed.
Judgment Entered.
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J-S30030-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JEFFREY GIDDINGS : : Appellant : No. 283 EDA 2023
Appeal from the PCRA Order Entered January 17, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0514881-1991
BEFORE: BENDER, P.J.E., LAZARUS, J., and SULLIVAN, J.
MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 12, 2023
Jeffrey Giddings appeals pro se from the order dismissing his petition
filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-
9546. Because Giddings’ petition is untimely and he has not satisfied any
exception to the PCRA’s timeliness requirement,1 we affirm.
In 1992, following a bench trial, the Honorable David N. Savitt convicted
Giddings of four counts of robbery and one count each of first-degree murder,
criminal conspiracy and possessing an instrument of crime. On October 21,
1992, the court sentenced Giddings to life imprisonment. This Court affirmed
Giddings’ judgment of sentence. Commonwealth v. Giddings, 640 A.2d ____________________________________________
1 These exceptions are: (1) the failure to raise the claim previously was due to governmental interference; (2) the facts of the claim were unknown to the petitioner and could not have been ascertained by due diligence; or (3) a newly-recognized constitutional right that the United States Supreme Court or Pennsylvania Supreme Court has been held to apply retroactively. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). J-S30030-23
471 (Pa. Super. 1994) (Table). Giddings did not seek review in the
Pennsylvania Supreme Court and, thus, his judgment of sentence became final
on February 28, 1994, when his time for seeking such review expired. See
42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 1113 (allowing thirty days to file petition
for allowance of appeal).
Approximately eight years later, on February 6, 2002, Giddings filed a
pro se PCRA petition, his first, in which he averred that his trial counsel was
ineffective for failing to file a petition for allowance of appeal. The PCRA court
appointed counsel and ultimately permitted counsel to withdraw pursuant to
Turner/Finley.2 On October 2, 2002, the PCRA court dismissed Giddings’
PCRA petition and, on collateral appeal, this Court affirmed the dismissal of
the petition. See Commonwealth v. Giddings, 832 A.2d 536 (Pa. Super.
2003) (Table). Giddings did not file a petition for allowance of appeal.
Over the next several years, Giddings filed a second and third PCRA
petition, each of which was dismissed as untimely. In 2016, Giddings filed his
fourth PCRA petition, pro se, seeking relief under Miller v. Alabama, 567
U.S. 460 (2012) and Montgomery v. Louisiana, 577 U.S. 460 (2016).3 The ____________________________________________
2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
3 In Miller, the United States Supreme Court held that it is unconstitutional for state courts to impose an automatic life sentence without possibility of parole upon a homicide defendant for a murder committed while the defendant was a juvenile. The United States Supreme Court later held in Montgomery that its decision in Miller applies retroactively. Giddings was 19 years old at the time of the murder.
-2- J-S30030-23
PCRA court dismissed that petition, and this Court affirmed. See
Commonwealth v. Giddings, 1092 EDA 2017 (Pa. Super. filed May 16,
2018) (unpublished memorandum decision).
On August 20, 2021, Giddings filed the instant pro se PCRA petition,4
his fifth. In his petition, Giddings alleges appointed counsel’s 2002 “no-merit”
letter “perpetrated a fraud on the court by alleging the claims [of trial
counsel’s ineffectiveness made in his 2002 PCRA petition] had no merit.” See
PCRA Petition, 8/20/21, at 2; Appellant’s Brief, at 7.
We review the dismissal of a PCRA petition to determine “whether the
PCRA court’s findings of fact are supported by the record, and whether its
conclusions of law are free from legal error.” Commonwealth v. Busanet,
54 A.3d 35, 45 (Pa. 2012). A PCRA petition must be filed within one year of
the date that the petitioner’s judgment of sentence becoming final. 42
Pa.C.S.A. § 9545(b)(1). “A judgment 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 the time
for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). The timeliness of a PCRA
petition is jurisdictional. If a PCRA petition is untimely, a court lacks
____________________________________________
4 Giddings’ submission was captioned as a motion to reconsider the order dismissing his 2002 PCRA petition. See 42 Pa.C.S.A. § 9542 (stating PCRA petition “shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies”). We agree with the PCRA court that Giddings’ claim is cognizable under the PCRA. See 42 Pa.C.S.A. § 9543(a)(2)(ii) (encompassing claims of ineffective assistance of counsel).
-3- J-S30030-23
jurisdiction to address its substantive claims. Commonwealth v. Wharton,
886 A.2d 1120, 1124 (Pa. 2005).
Here, Giddings’ judgment of sentence became final in 1994. His
petition, filed on August 20, 2021, is facially untimely. Giddings avers
appointed counsel should not have been permitted to withdraw and counsel’s
failure to file a petition for allowance of appeal in 2002 amounted to ineffective
assistance of counsel. See PCRA Petition, 8/20/21, at 1. As such, Giddings
neither pleads nor proves any exception to the one-year timeliness
requirement. See Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785
(Pa. 2000); see also Commonwealth v. Abu-Jamal, 833 A.2d 719, 725-
726 (Pa. 2003) (PCRA petitioner cannot establish “new fact” exception merely
by alleging possible ineffective assistance of counsel claims were unknown to
petitioner and could not have been discovered until after present counsel
reviewed petitioner’s file). Thus, as Giddings’ ineffectiveness claim did not
constitute a “new fact” for purposes of section 9545(b)(1)(ii), the PCRA court
lacked jurisdiction to consider its merits.
Because Giddings has not shown that any statutory exception to the
PCRA’s one-year time limit applies to the claims of ineffective assistance of
PCRA counsel that he asserted in his 2002 PCRA petition, the trial court
correctly held that Giddings’ 2021 PCRA petition was untimely.5 Giddings,
5 We note that our Supreme Court’s decision in Commonwealth v. Bradley,
261 A.3d 381 (Pa. 2021), which held a PCRA petitioner may, after PCRA court (Footnote Continued Next Page)
-4- J-S30030-23
therefore, is ineligible for relief. See 42 Pa.C.SA. § 9545(b)(1)(i-iii).
Accordingly, we affirm the PCRA court’s order dismissing Giddings’ petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/12/2023
denies relief, and after obtaining new counsel or acting pro se, raise claims of PCRA counsel’s ineffectiveness at the first opportunity to do so, even if on appeal, does not provide an exception to the PCRA’s time bar. The Bradley Court stated that “allowing a petitioner to raise claims of ineffective PCRA counsel at the first opportunity, even if on appeal[,] . . . best recognizes a petitioner’s right to effective PCRA counsel while advancing equally legitimate concerns that criminal matters be efficiently and timely concluded.” Id. at 405.
We note that several, non-precedential decisions of this Court have repeatedly determined that Bradley does not permit the filing of a subsequent untimely PCRA petition as a method of raising claims of ineffectiveness of PCRA counsel. See, e.g., Commonwealth v. Bingaman, 123 WDA 2022, (Pa. Super. filed Oct. 21, 2022) (unpublished memorandum decision); Commonwealth v. Bernal, 974 MDA 2021 (Pa. Super. filed Sept. 13, 2022) (unpublished memorandum decision); Commonwealth v. Dennis, 1926 EDA 2021 (Pa. Super. filed Aug. 29, 2022) (unpublished memorandum decision). See also Commonwealth v. Dixon, 1145 EDA 2022 (Pa. Super. filed Dec. 28, 2022) (unpublished memorandum decision (holding Bradley does not trigger the timeliness exception of Section 9545(b)(1)(iii)); Commonwealth v. Parkinson, 1286 EDA 2022 (Pa. Super. filed Oct. 6, 2022) (unpublished memorandum decision) (holding Bradley did not create new, non-statutory exception to PCRA time bar).
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