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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA


                   v.

JOHN GANTZ

                         Appellant                     No. 1728 WDA 2015


               Appeal from the PCRA Order October 6, 2015
             In the Court of Common Pleas of Warren County
           Criminal Division, at No(s): CP-62-CR-0000313-2005


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

MEMORANDUM BY PANELLA, J.:                        FILED SEPTEMBER 28, 2016

     This is a pro se appeal from the order dismissing the “Motion for Writ

of Habeas Corpus” filed by John Gantz (“Appellant”) as an untimely serial

petition pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§

9541-46. We affirm.

     The   pertinent    facts   and   partial   procedural   history   have   been

summarized as follows:

            On August 16, 2005, Appellant pled guilty to theft by
     unlawful taking in case number 313 of 2005. On September 9,
     2005, Appellant was sentenced in that case to, inter alia, five
     years of probation, which was to run consecutive to his
     sentences in several other cases. Appellant did not file a direct
     appeal. In 2012, following the appropriate hearings, Appellant
     pled guilty to violating the terms of his probation. As a result,
     Appellant’s probation was revoked, and he was sentenced to
     nine months to five years of imprisonment. Again, Appellant did
     not file a direct appeal.
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            On October 5, 2012, filed a PCRA petition pro se. Counsel
      was appointed and instructed to file an amended petition.
      Instead, counsel filed a petition to withdraw and no merit letter
      pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
      1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.
      Super. 1988) (en banc). On February 4, 2013, the PCRA court
      entered orders granting counsel’s petition and informing
      Appellant, pursuant to Pa.R.Crim.P. 907, of its intention to
      dismiss the PCRA petition without a hearing. Appellant filed
      objections to the Rule 907 notice, which the PCRA court
      reviewed and nonetheless dismissed Appellant’s PCRA petition by
      order of March 28, 2013.

Commonwealth v. Gantz, 689 WDA 2013, at 1-2 (Pa. Super., filed

December 12, 2013) (unpublished memorandum).

      Appellant filed a timely appeal to this Court. The panel affirmed the

order denying post-conviction relief. In doing so, the panel noted that,

absent waiver, Appellant’s claims regarding his original 2005 judgment of

sentence were untimely and Appellant did not plead and prove an exception

to the PCRA’s time bar. See id., at 4 n.1. Appellant did not file a petition for

allowance of appeal.

      On July 13, 2015, Appellant filed the petition for writ of habeas corpus

at issue. Treating the filing as a second PCRA petition, the PCRA court issued

notice of its intent to dismiss the PCRA petition as untimely. Appellant filed a

response and a supplemental response. The PCRA court ultimately dismissed

Appellant’s second PCRA petition. This timely appeal follows.

      Initially, we note that it is well settled that the PCRA subsumes the

remedy of habeas corpus with respect to remedies offered under the PCRA.

See generally Commonwealth v. Peterkin, 722 A.2d 638 (Pa. 1998).



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Appellant’s claims involve the validity of his 2005 plea and clearly are

cognizable under the PCRA. See, e.g., Commonwealth v. Burkett, 5 A.3d

1260, 1275 (Pa. Super. 2010) (explaining that “PCRA review is limited to

defendants who claim they were wrongfully convicted and/or are serving an

illegal sentence.”) Thus, the PCRA Court properly treated Appellant’s petition

under the PCRA.1

       Within his pro se brief, Appellant raises eighteen issues regarding the

validity of his guilty plea based on his claim that, in the months preceding its

entry he had been involuntarily committed and was “severely mentally

disabled.” Appellant’s Brief at 7. Before addressing these claims, however,

we must first determine whether the PCRA court correctly concluded that

Appellant’s second PCRA petition was untimely filed.

       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 proves an exception to the time for

filing the petition. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A PCRA petition

____________________________________________


1
  In his motion for writ of habeas corpus, Appellant argued that his request
for relief fell outside the parameters of the PCRA. See Motion, 7/13/15, at 8-
9. It does not.




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

the date the claims could have been presented.” Hernandez, 79 A.3d 651-

52 (citing 42 Pa.C.S.A. § 9545(b)(2)).

      Appellant’s judgment of sentence became final on October 10, 2005,

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

See 42 Pa.C.S.A. § 9545(b)(3). Therefore, Appellant needed to file the

petition at issue by October 10, 2006, in order for it to be timely. As

Appellant filed the instant petition almost ten years later, it is untimely

unless he has satisfied his burden of pleading and proving that one of the

enumerated exceptions applies.

      In his initial response to the PCRA court’s Rule 907 notice, Appellant

asserted that his “efforts to present his claims in his first PCRA, either

through error, slight, intentional malice, OR [sic] through a misapplication of

law as applied, presented government interference of those claims.” Reply,

8/27/15, at 7. In essence, Appellant asserts that the continued refusal of the

trial court to recognize his mental incompetency at the time of entering his

plea equated to governmental interference in that the court attempted to

conceal the presentation of his claims regarding his mental state.

      The PCRA court rejected Appellant’s claim, and explained as follows:

            The [c]ourt will address [Appellant’s] PCRA time exception
      claim and incompetency claim together because [Appellant]
      claims that the Court prevented presentation of the claim to hide
      the fact that he was incompetent. [Appellant] attempts to
      characterize his claim as one subject to the 42 Pa.C.S. §
      9545(b)(1)(i) time exception,     Although [Appellant] suffered

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        from mental illness, he was not incompetent because he fully
        understood his rights. A review of the record refutes
        [Appellant’s] incompetency claim. Mental health documentation
        shows that [Appellant] was able to understand his rights
        regardless of the need for inpatient treatment. During [his guilty
        plea colloquy], [Appellant] was able to list his mental illnesses
        and various medications he took for treatment. [Appellant] could
        accurately define the crimes to which he entered guilty pleas.
        Additionally, [Appellant] was also able to interject regarding one
        theft charge and explain that he admitted to the conduct but was
        unsure about the value of the items. During [sentencing],
        [Appellant] was able to inform trial counsel of a mistake in the
        pre-sentence     report   regarding     restitution.  Furthermore,
        [Appellant] was able to speak about the concurrent nature of his
        New York probation revocation sentence and whether a sentence
        on the instant case would run concurrently or consecutively with
        the New York sentence. Since there is no evidence that
        [Appellant] was incompetent, then his related claim regarding
        the timeliness exception of his Petition must also fail.

PCRA Court Opinion, 10/7/16, at 2.

        Our review of the record supports the PCRA court’s conclusions. See

Commonwealth v. Howard, 788 A.2d 351, 354 (Pa. 2002) (rejecting

governmental interference claim regarding refusal to grant request of funds

to hire an expert regarding his mental health; “[w]e do not see how a proper

court    order   can,     in   any   fashion,   be   perceived   as   governmental

interference”). Thus, the PCRA court correctly concluded that it lacked

jurisdiction to consider Appellant’s serial PCRA petition. We therefore affirm

the PCRA court’s order denying Appellant post-conviction relief.

        Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/28/2016




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