J-S24013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JOHN FRANK GEBAUER

                            Appellant                  No. 917 WDA 2016


                   Appeal from the PCRA Order May 31, 2016
              In the Court of Common Pleas of Washington County
              Criminal Division at No(s): CP-63-CR-0001167-2003


BEFORE: PANELLA, J., STABILE, J., and STEVENS, P.J.E. *

MEMORANDUM BY PANELLA, J.                               FILED JUNE 05, 2017

        Appellant, John Gebauer, appeals pro se from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”) 1 as

untimely. We affirm.

        Given our disposition, a detailed recitation of the facts is unnecessary

in this matter. Appellant shot and killed his adoptive mother. On October 14,

2004, Appellant entered a guilty plea to third degree murder, abuse of a

corpse, possession of a firearm by a minor, theft of a firearm, theft of a

credit card, and unauthorized use of a motor vehicle. Appellant was

sentenced on December 9, 2004, to an aggregate 37½ to 75 years’

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*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S.A. §§ 9541-9546.
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incarceration. Appellant did not file a direct appeal.

       On November 4, 2010, Appellant filed a motion for transcripts from his

guilty plea hearing and sentencing. Appellant then filed a pro se PCRA

petition, his first, on March 23, 2011. The court appointed Attorney Jeff

Watson, who filed a Turner/Finley no-merit letter and a motion to

withdraw. Instead of deciding the petition on the merits, the court assigned

Attorney Mary Bates to represent Appellant. Attorney Bates also filed a

motion to withdraw, relying on the no-merit letter written by Attorney

Watson. After the court issued Rule 907 notice, Appellant requested and

received an extension of time to respond. Appellant filed an amended pro se

PCRA    petition,   claiming   ineffective   assistance   of   counsel,   unlawful

inducement of his guilty plea, and the imposition of an illegal sentence. The

court ultimately granted the attorneys’ motions to withdraw, and dismissed

Appellant’s petition on untimeliness grounds. This timely appeal followed.

       On appeal, Appellant appears to claim that the PCRA court erred in

dismissing his petition as untimely where the sentence he is serving is

illegal. See Appellant’s Brief, at 1-4. We disagree.

       Our standard of review of a trial court order granting or denying
       relief under the PCRA calls upon us to determine whether the
       determination of the PCRA court is supported by the evidence of
       record and is free of legal error. The PCRA court’s findings will
       not be disturbed unless there is no support for the findings in the
       certified record.

Commonwealth v. Barndt, 74 A.3d 185, 191-192 (Pa. Super. 2013)

(citation and internal quotation marks omitted).


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      Before reaching the merits of Appellant’s claim, we must first consider

the timeliness of his PCRA petition, as it implicates the jurisdiction of this

Court and the PCRA court. See Commonwealth v. Miller, 102 A.3d 988,

992 (Pa. Super. 2014).

      A PCRA petition, including a second or subsequent one, must be
      filed within one year of the date the petitioner’s judgment of
      sentence became final, unless he pleads and proves one of the
      three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
      judgment becomes final at the conclusion of direct review by this
      Court or the United States Supreme Court, or at the expiration
      of the time for seeking such review. 42 Pa.C.S.[A.] §
      9545(b)(3).      The   PCRA’s     timeliness    requirements  are
      jurisdictional; therefore, a court may not address the merits of
      the issues raised if the petition was not timely filed. The
      timeliness requirements apply to all PCRA petitions, regardless of
      the nature of the individual claims raised therein. The PCRA
      squarely places upon the petitioner the burden of proving an
      untimely petition fits within one of the three exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (citations and

footnote omitted).

      Here, Appellant’s judgment of sentence became final on January 8,

2005, when the thirty-day period for filing an appeal to this Court expired.

See 42 Pa.C.S.A. § 9545(b)(3). His first PCRA petition, filed over six years

later on March 23, 2011, is patently untimely. Thus, the PCRA court lacked

jurisdiction to review Appellant’s petition unless he was able to plead and

prove one of the statutory exceptions to the law’s time-bar. See 42

Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      The PCRA contains three limited exceptions that permit review of an

untimely PCRA petition:

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       (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
       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.

Id. A petitioner asserting a timeliness exception must file a petition within

60 days of the date the claim could have been presented. See 42 Pa.C.S.A.

§ 9545(b)(2).

       In the present case, Appellant fails to properly invoke any of the three

timeliness exceptions under Section 9545(b)(1).2 Appellant makes a series

of undeveloped arguments pertaining to the alleged vagueness of the

charges against him; the purported excessiveness of his sentence, in light of

the fact that he was a juvenile at the time of the murder; and imprecise

assertions regarding plea counsel’s ineffectiveness. Appellant does not

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2
  In his initial PCRA petition, Appellant attempted to invoke the newly
discovered facts exception. Appellant claimed he was unaware of counsel’s
incompetence at the time of his plea, and unable to learn of his right to relief
until well after sentencing, as he is untrained in the law. Appellant claimed
that his discovery of counsel’s incompetence was a newly discovered fact.
However, a “discovery” that previous counsel was ineffective is not a newly
discovered fact that would entitle Appellant to relief under the PCRA. See
Commonwealth v. Mitchell, 141 A.3d 1277, 1285 (Pa. 2016). Moreover,
Appellant abandoned this claim on appeal.



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articulate how any of these claims might fall within the PCRA’s time-bar

exceptions, nor does he allege that he raised these issues within 60 days of

the date of their discovery.

      We conclude that Appellant has not met his burden of proving that his

patently untimely petition falls within one of the three limited exceptions to

the PCRA’s jurisdictional time-bar. Accordingly, we affirm the PCRA court’s

order dismissing his petition for relief.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/2017




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