J-S57008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA


                     v.

DOUGLAS CARL GIBBONEY

                          Appellant                   No. 1081 EDA 2017


                 Appeal from the PCRA Order March 1, 2017
              In the Court of Common Pleas of Chester County
            Criminal Division at No(s): CP-15-CR-0003626-2012


BEFORE: PANELLA, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                          FILED OCTOBER 19, 2017

      Appellant, Douglas Carl Gibboney, appeals pro se from the order entered

on March 1, 2017, in the Court of Common Pleas of Chester County, which

dismissed as untimely his second petition filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      Pursuant to a plea agreement, Gibboney is currently serving a sentence

of three to ten years’ imprisonment, stemming from two DUI convictions.

Gibboney did not file a direct appeal. But he did seek to collaterally attack his

convictions and timely filed a PCRA petition, which the PCRA court ultimately

denied. And this Court affirmed the dismissal of that petition. See

Commonwealth v. Gibboney, No. 1904 EDA 2014 (Pa. Super., filed June

23, 2015) (unpublished memorandum).
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      Exactly one year after the dismissal of his PCRA petition, the United

States Supreme Court decided Birchfield v. North Dakota, 136 S.Ct. 2160

(2016), concluding, in part, that warrantless blood testing of individuals

arrested on DUI charges is unconstitutional. Seizing on that conclusion,

Gibboney filed, pro se, another PCRA petition. In it, he alleged there was an

“[i]llegal search and seizure of my blood” and that “my blood and the test

result from it [] was illegally obtained in violation of the 4 th Amendment [of

the] U.S. Constitution[.]” PCRA Petition, filed 8/25/16, at 3 ¶6.

      The PCRA court appointed counsel who later petitioned to withdraw. The

PCRA court provided notice to Gibboney of its intent to dismiss the petition

without a hearing and that same day granted counsel’s petition to withdraw.

Gibboney filed a response, but to no avail, as the PCRA court later dismissed

the petition as untimely. This timely appeal followed.

      “[W]e must determine whether the ruling of the PCRA court is supported

by the record and is free of legal error.” Commonwealth v. Spotz, 18 A.3d

244, 259 (Pa. 2011) (citation omitted). We apply “a de novo standard of

review to the PCRA court’s legal conclusions.” Id. (citation omitted).

      The timeliness of a post-conviction petition is jurisdictional. See

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

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

is final unless the petition alleges, and the petitioner proves, an exception to

the time for filing the petition is met. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

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Exceptions to the time bar must be pled in the petition, and may not be raised

for the first time on appeal. See Commonwealth v. Burton, 936 A.2d 521,

525 (Pa. Super. 2007). And a PCRA petition invoking one of these statutory

exceptions “shall be filed within 60 days of the date the claim could have been

presented.” 42 Pa.C.S.A. § 9545(b)(2).

       Gibboney’s judgment of sentence became final on February 11, 2013,

when the thirty-day time period for filing an appeal to this Court expired. See

42 Pa.C.S.A. § 9545(b)(3); Pa.R.Crim.P. 720(A)(3).1 Therefore, Gibboney

needed to file the petition at issue by February 11, 2014, for it to be timely.

He filed the instant petition over three years later; it is untimely unless he has

satisfied the burden of pleading and proving one of the timeliness exceptions.

       Gibboney pled in his petition, see PCRA Petition, filed 8/25/16, at 2 ¶4A,

that Birchfield satisfies § 9545(b)(1)(iii). That exception to the time bar

provides that “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.”
____________________________________________


1 Irrelevant to this proceeding, but worth briefly mentioning, is that one year
and six months after the imposition of his sentence Gibboney filed a pro se
post-sentence motion. The trial court should have treated that filing as a PCRA
petition. See, e.g., Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa.
Super. 2011) (“[A]ny petition filed after the judgment of sentence becomes
final will be treated as a PCRA petition.”) Instead, on January 21, 2014, the
trial court scheduled a hearing on “Defendant’s Post-Sentence Motion.” Three
days later, however, Gibboney filed a pro se PCRA petition and the PCRA court
duly appointed counsel. The final mention on the docket of the “post-sentence
motion” is on January 29, 2014, and is the cancellation of a hearing.

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      Gibboney filed his petition within 60 days of the filing of Birchfield.

However, even assuming Birchfield announced a new constitutional right,

neither our Supreme Court nor the United States Supreme Court has held that

it is to be applied retroactively to cases in which the judgment of sentence

had become final. This is fatal to Gibboney's argument regarding the PCRA

time bar.

      It is worth noting that Gibboney claims a Fourth Amendment violation

in his PCRA petition. But he pled guilty. “The entry of a guilty plea constitutes

a waiver of all defects and defenses except lack of jurisdiction, invalidity of

the plea, and illegality of the sentence.” Commonwealth v. Tareila, 895

A.2d 1266, 1267 (Pa. Super. 2006) (citation omitted). Thus, he waived any

suppression issue. And he does not allege, in any filing, that his guilty plea

was involuntary or that Birchfield, somehow, rendered his sentence illegal.

      Gibboney advances two other claims in his brief. Both concern the

legality of his sentence. See Appellant’s Brief, at 2. Specifically, Gibboney

contends the trial court failed to comply with 75 Pa.C.S.A. § 3814, Drug and

alcohol assessments. Thus, according to Gibboney, the PCRA court erred in

not vacating his sentence for this failure and the PCRA court erred when it

declined to find his PCRA counsel rendered ineffective assistance in failing to

amend his petition to include this claim.

      “[A] court may entertain a challenge to the legality of the sentence so

long as the court has jurisdiction to hear the claim. In the PCRA context,



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jurisdiction is tied to the filing of a timely PCRA petition.” Commonwealth v.

Fowler, 930 A.2d 586, 592 (Pa. Super. 2007) (citation omitted; brackets in

original). And that means the “claims must still first satisfy the PCRA’s time

limits or one of the exceptions thereto.” Id. (citations omitted).

      Gibboney raises his claim of an illegal sentence for the first time on

appeal. He, however, preserved his allegation of the ineffective assistance of

PCRA counsel in his response to the PCRA court’s notice of its intent to dismiss

his petition. See Petitioner’s Objection to the Notice of Intent to Dismiss,

2/15/17, at 2 ¶3. Neither claim provides relief.

      Apart from it being improperly raised for the first time on appeal, see

Pa.R.A.P. 302(a), the assertion that his judgment of sentence is illegal

because the trial court failed to comply with § 3814 does not plead an

exception to the PCRA’s time bar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Thus,

it would have been pointless for PCRA counsel to have pled this claim. See

Commonwealth v. Baldwin, 760 A.2d 883, 885 (Pa. 2000) (“[C]ounsel

cannot be ineffective for failing to assert a meritless claim.”)

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/19/2017

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