J-S50034-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                  v.

STEVEN A. GARDNER,

                         Appellant                 No. 418 WDA 2014


          Appeal from the PCRA Order entered February 7, 2014,
              in the Court of Common Pleas of Butler County,
           Criminal Division, at No(s): CP-10-CR-0000219-1995


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.:                         FILED AUGUST 11, 2014

                                              pro se from the order denying

his serial petition for post-conviction relief filed pursuant to the Post

                                 42 Pa.C.S.A. §§ 9541-46. We affirm.

     The pertinent facts and protracted procedural history have been

summarized as follows:

            On October 20, 1995, a jury convicted [Appellant] of
        first degree murder in connection with the January 10,
        1995 shooting of a man who was renting a room in

        sentenced to life imprisonment on October 23, 1995. This
        [C]ourt affirmed the judgment of sentence on August 29,
        2000, and our supreme court denied appeal on January
        22, 2001. Commonwealth v. Gardner, 764 A.2d 122
        (Pa. Super. 2000) (unpublished memorandum), appeal
        denied, 576 Pa. 710, 785 A.2d 87 (2001). We note that
        during the pendency of both his direct appeal and
        subsequent PCRA petitions, [Appellant] has repeatedly
        filed additional pro se PCRA petitions or similar pleadings
        despite the fact that he already had a petition pending.
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          On February 15, 2001, [Appellant] filed his first valid
       PCRA petition. Counsel was appointed and an amended
       PCRA petition was filed. A hearing was held on January
       21, 2004, and the petition was ultimately denied on March
       4, 2004. This [C]ourt affirmed the decision on October 24,
       2006, and our supreme court denied appeal on May 18,
       2007. Commonwealth v. Gardner, 913 A.2d 941 (Pa.
       Super. 2006) (unpublished memorandum), appeal
       denied, 592 Pa. 765, 923 A.2d 1173 (2007).

         On November 19, 2008, [Appellant] filed a second pro
       se PCRA petition. On February 10, 2011, an order was

       second PCRA petition. On February 24, 2011, Appellant
       filed a motion to reconsider. On March 8, 2011, the court
       denied the motion to reconsider.        On April 5, 2011,
       [Appellant] filed a notice of appeal, attempting to appeal
       the orders entered on February 10, 2011 and March 8,
       2011. This [appeal was docketed] at 733 WDA 2011.

          On March 9, 2011, [Appellant] filed a third pro se PCRA
       petition. On March 25, 2011, an order was entered (dated

       On April 6, 2011, [Appellant] filed a motion to reconsider.
       On April 7, 2011, the court denied the motion to
       reconsider. On May 5, 2011, [Appellant] filed a notice of
       appeal, attempting to appeal the orders entered on March
       25, 2011 and April 7, 2011. This [appeal was docketed] at
       No. 1275 WDA 2011.

          On August 26, 2011, Appellant filed a fourth pro se
       PCRA petition. On September 7, 2011, an order was
       entered (dated September 1, 2011) denying and

       September 23, 2011, [Appellant] filed a motion to
       reconsider. On September 30, 2011, the court entered an
       order (dated September 28, 2011) denying the motion to
       reconsider.   On October 14, 2011, [Appellant] filed a
       notice of appeal, attempting to appeal the orders entered
       on September 7, 2011 and September 30, 2011. This
       [appeal was docketed] at No. 1681 WDA 2011.




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Commonwealth v. Gardner, 50 A.3d 237 (Pa. Super. 2012), unpublished

memorandum at 3-5 (footnotes omitted)).

     On May 8, 2012, this Court addressed all three appeals together and

quashed at each docket.    Gardner, unpublished memorandum at 2.       In

doing so, we stated:

           Appellant has committed the same fatal error in each of
        the three appeals before us. In each instance, after the
        court below entered an order denying [his] PCRA petition,
        [Appellant] filed a motion to reconsider and then waited
        until this motion was decided before filing the notice of
        appeal. In each case, the notice of appeal was filed
        beyond 30 days after the original order was entered
        denying the PCRA petition, resulting in an untimely appeal.
        See Pa.R.A.P., Rule 903(a). 42 Pa.C.S.A.

           It is well-settled that a motion for reconsideration does
        not toll the 30-day appeal clock unless the court grants the
        motion within the 30-day appeal period. Commonwealth
        v. Moir, 766 1253, 1254 (Pa. Super. 2000). Otherwise, a
        notice of appeal must be filed within the 30-day appeal
                                                    Id.
        we have consistently held that an appeal from an order
                                                              Id.

                                   ***

           Since all three notices of appeal were filed beyond their
        respective 30-day appeal periods, all three appeals are
        untimely and must be quashed.

Id., unpublished memorandum at 5-6.




petition for mandamus and application to proceed in forma pauperis.

Commonwealth v. Gardner, 2013 Pa. LEXIS 199.


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      On June 29, 2012, Appellant filed another PCRA petition, styled as an




procedural error, and sought the reinstatement of his right to file his appeals

because we did not rule on their merits.          According to Appellant, his



have overlooked. Subsequently, on November 9, 2012, Appellant filed with

t




notice of appeal to this Court.



filings as requests for post-conviction relief, and believing that two of



                                         See Order of Court, 12/19/12 (citing

Commonwealth        v.   Jones,    811     A.2d   944,   1008    (Pa.   2002);

Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000)). That same day,



appeal and requested a Pa.R.A.P. 1925(b) statement of errors complained of

on appeal. Subsequently, both Appellant and the PCRA court complied with

Pa.R.A.P. 1925.

      In a judgment order entered July 8, 2013, this Court quashed

                                                          ant filed his appeal

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prematurely because no appealable order had been entered upon the




               See Commonwealth v. Gardner, 82 A.3d 1059 (Pa. Super.



reargument and/or reconsideration.

     Undaunted, on September 6, 2013, Appellant filed another PCRA

                                      or Restoration of Appellate Rights &




Appellant further asserted that his latest filing was timely because it was

f                              Commonwealth v. Beasley, 741 A.2d 1259



     On December 20, 2013, the PCRA court issued Pa.R.Crim.P. 907 notice



because it was untimely and Appellant had not established any exception to




petition. On February 14, 2014, Appellant filed a motion for reconsideration,

which the PCRA court denied on March 11, 2014.       Learning from his past

mistakes, Appellant also filed a timely appeal to this Court on March 3,

2014. Subsequently, both Appellant and the PCRA court have complied with

Pa.R.A.P. 1925.

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J-S50034-14




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



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 i

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

                                                                   tition for post-



subsequent post-conviction request for relief will not be entertained unless a

strong prima facie showing is offered to demonstrate that a miscarriage of

justice m                    Commonwealth v. Burkhardt, 833 A.2d 233,

236 (Pa. Super. 2003) (en banc

prima facie showing if he demonstrates that either the proceedings which

resulted in his conviction were so unfair that a miscarriage of justice

occurred which no civilized society could tolerate, or that he was innocent of

                                         Id.

      Appellant seeks to reinstate his right to appeal and have his

previously-filed triad of PCRA petitions considered on their merits.           Before


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doing so, we must determine whether the PCRA court properly determined

                                                                                      -

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

                                                     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



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

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

                                                   Commonwealth v. Fowler, 930

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

inv

                                                              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


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J-S50034-14


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

A.2d 521, 525 (Pa. Super. 2007); see also

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



      Because Appellant did not file a writ of certiorari to the United States



allowance of appeal on January 22, 2001, his judgment of sentence became

final on or about April 23, 2001, when the ninety-day time period for filing a

writ of certiorari with the United States Supreme Court expired.             See

U.S.Sup.Ct.R. 13; 42 Pa.C.S.A. § 9545(b)(3). Therefore, Appellant had to

file the instant petition by April 23, 2002, in order for it to be timely.    As

Appellant filed the instant petition on September 6, 2013, it is patently

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).



time bar.     See 9545(b)(1)(i-iii).    Instead, within his brief, Appellant



within the time exceptions of 42 Pa.C.S.A. § 9545 (b)(1)(ii)      the 60 day




notice of appeal should be excused as he was


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that the filing of a motion for reconsideration would toll the thirty-day appeal



own ineffectiveness as a basis for satisfying a PCRA time bar exception. See

generally

not include defense counsel); Commonwealth v. Crews, 863 A.2d 498

(Pa. 2004).

          In sum, the PCRA court correctly determined that it lacked jurisdiction

                            s substantive issues raised in his latest filing.   We

                                                                       -conviction

relief.

          Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2014




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