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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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