J-S04018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JOZSEF GYETVAI,

                            Appellant               No. 716 MDA 2014


              Appeal from the PCRA Order entered March 20, 2014,
              in the Court of Common Pleas of Lackawanna County,
               Criminal Division, at No(s): CP-35-CR-0003461-2007


BEFORE: BOWES, ALLEN, and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.:                        FILED FEBRUARY 09, 2015

       Jozsef Gyetvai (“Appellant”) appeals pro se from the order denying his

untimely petition for post-conviction relief filed pursuant to the Post

Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.1

       The PCRA court summarized the pertinent facts and procedural history

as follows:

             On February 28, 2008, [Appellant] pled guilty to one
          count of rape of a child. In exchange, the other charges
          against [Appellant] were dropped. These charges arose
          between March and November of 2007 when [Appellant]
          repeatedly sexually abused his ten-year-old stepdaughter.
____________________________________________


1
 Given our disposition, we deny the Commonwealth’s motion to quash as
moot.




*Retired Senior Judge assigned to the Superior Court.
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        On May 30, 2008, [Appellant] was sentenced to 15 to 35
        years, followed by five years of special probation.
        [Appellant] filed a Motion for Reconsideration of Sentence
        which was denied on June 10, 2008. [Appellant did not file
        a direct appeal].

           On December 29, 2008, [Appellant] filed a [PCRA
        petition].  [PCRA counsel] was appointed to represent
        [Appellant]. On May 7, 2010, [PCRA counsel] filed a
        Motion to Withdraw Pursuant to a [Turner/Finley] Letter.
        On June 15, 2010, [PCRA counsel’s] motion was granted.
        Also on June 15, 2010, this court issued a Notice of Intent
        to Dismiss and on July 15, 2010, dismissed the petition.
        [Appellant] filed a notice of appeal to the Superior Court,
        and on July 7, 2011, the Superior Court affirmed the
        court’s denial of PCRA relief.

           On September 9, 2011, [Appellant] filed his second
        PCRA petition. On September 12, 2011, this court again
        appointed [PCRA counsel] to represent [Appellant]. On
        May 28, 2013, [PCRA counsel] filed a Motion to Withdraw
        as Counsel Pursuant to a [Turner/Finley] Letter. On July
        9, 2013, [PCRA counsel’s] motion was granted. Also on
        July 9, 2013, this court issued a Notice of Intent to Dismiss
        and on September 26, 2013, dismissed [Appellant’s second
        PCRA] petition.

           On September 30, 2013, [Appellant] filed his third PCRA
        petition, and on December 3, 2013 filed a motion in
        support. On January 16, 2014 this court issued a Notice of
        Intent to Dismiss and on March 20, 2014, dismissed the
        petition.

PCRA Court Opinion, 1/16/14, at 1-2.         This timely appeal followed.       Both

Appellant and the PCRA court have complied with Pa.R.A.P. 1925.

      This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

supported   by   the   evidence   of   record   and   is   free   of   legal   error.

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA


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court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).       Moreover, a PCRA court may decline to hold a

hearing on the petition if the PCRA court determines that the petitioner’s

claim is patently frivolous and is without a trace of support in either the

record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011

(Pa. Super. 2001).

      Before addressing the issues Appellant presents on appeal, we must

first consider whether the PCRA court properly determined that Appellant’s

petition was untimely.       The timeliness of a post-conviction petition is

jurisdictional.   Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa.

2010) (citation omitted). Thus, if a petition is untimely, neither an appellate

court nor the PCRA court has jurisdiction over the petition.             Id.    “Without

jurisdiction, we simply do not have the legal authority to address the

substantive claims” raised in an untimely petition. Id.

      Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

becomes final unless the petition alleges, and the petitioner proves, an

exception to the time for filing the petition. Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under

these exceptions, the petitioner must plead and prove that: “(1) there has

been interference by government officials in the presentation of the claim; or

(2)   there   exists   after-discovered    facts   or   evidence;   or    (3)    a   new

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constitutional right has been recognized.” Commonwealth v. Fowler, 930

A.2d 586, 591 (Pa. Super. 2007) (citations omitted).         A PCRA petition

invoking one of these statutory exceptions must “be filed within sixty days of

the date the claim first could have been presented.” Gamboa-Taylor, 753

A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to

the time restrictions of the PCRA must be pled in the petition, and may not

be raised for the first time on appeal.    Commonwealth v. Burton, 936

A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not

raised before the lower court are waived and cannot be raised for the first

time on appeal.”).

      Appellant’s judgment of sentence became final on July 10, 2008, thirty

days after the time for filing a direct appeal to this Court expired.       42

Pa.C.S.A. § 9545(b)(3). Therefore, Appellant had to file the PCRA petition at

issue by July 10, 2009 in order for it to be timely.    As Appellant filed the

instant petition on September 30, 2013, it is untimely unless he has satisfied

his burden of pleading and proving that one of the enumerated exceptions

applies.   See Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa.

1999).

      Appellant has failed to plead and prove any exception to the PCRA’s

time bar. Indeed, Appellant does not even acknowledge the untimeliness of

his latest PCRA petition in his appellate brief. Thus, the PCRA court correctly

determined that it lacked jurisdiction to consider Appellant’s PCRA petition.


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We therefore affirm the PCRA court’s order denying Appellant post-

conviction relief.

      Motion to Quash denied as moot. Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2015




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