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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JOZSEF GYETVAI
Appellant No. 226 MDA 2016
Appeal from the PCRA Order January 7, 2016
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0003461-2007
BEFORE: BOWES, J., PANELLA, J., and JENKINS, J.
MEMORANDUM BY PANELLA, J. FILED OCTOBER 13, 2016
Appellant, Jozsef Gyetvai, appeals pro se from the order dismissing as
untimely his latest petition for post-conviction relief filed pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.
The PCRA court summarized the relevant procedural and factual
history as follows.
On February 28, 2008, [Appellant] pled guilty to one count
of rape of a child. In exchange, the other charges against the
defendant were nolle prossed. These charges arose between
March and November of 2007 when [Appellant] repeatedly
sexually abused his ten-year-old stepdaughter.
On May 30, 2008, [Appellant] was sentenced to 15 to 35
years, followed by five years of special probation. [Appellant]
filed a Motion for Reconsideration of Sentence which was denied
on June 10, 2008. [Appellant did not file a direct appeal.]
On December 29, 2008[, Appellant] filed a [PCRA petition].
[PCRA counsel] was appointed to represent [Appellant]. On May
17, 2010, [PCRA counsel] filed a Motion to Withdraw as Counsel
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Pursuant to a [Turner/Finley] Letter. On June 15, 2009, [PCRA
counsel’s] motion was granted. Also on June 15, 2010, this court
issued a Notice of Intent to Dismiss and on July 15, 2010,
dismissed the petition. [Appellant] filed a notice of appeal to the
Superior Court, and on July 7, 2011, the Superior Court affirmed
the court’s denial of PCRA relief.
On September 9, 2011, [Appellant] filed his second PCRA
petition. On September 12, 2011, this court again appointed
[PCRA counsel] to represent [Appellant]. On May 28, 2013,
[PCRA counsel] filed a Motion to Withdraw as Counsel Pursuant
to a [Turner-Finley] Letter. On July 9, 2013, [PCRA counsel’s]
motion was granted. Also on July 9, 2013, this court issued a
Notice of Intent to Dismiss and on September 26, 2013,
dismissed the petition.
On September 20, 2013, [Appellant] filed his third PCRA
petition, and on December 3, 2013 filed a motion [sic] in
support. On January 16, 2014, this court issued a Notice of
Intent to Dismiss and on March 20, 2014, dismissed the petition.
On April 22, 2014, [Appellant] filed a Notice of Appeal, and on
February 9, 2015, the Superior Court affirmed the court’s
dismissal of the third PCRA petition.
On February 19, 2015, [Appellant] filed a Motion for
Acquittal challenging the sufficiency of the evidence against him,
as well as raising other arguments. On March 3, 2015, he filed a
Motion to Amend the Motion for Aquittal, challenging the legality
of his sentence. On March 4, 2015, he filed another motion
asking the court to grant his motions. This court deemed these
motions to be a fourth PCRA petition. On April 30, 2015, this
court issued a Notice of Intent to Dismiss and on June 8, 2015,
dismissed the petition.
On June 15 and July 7, 2015, [Appellant] filed an
Administrative Appeal and Application for Reargument which this
court denied. On August 3, 2015, [Appellant] filed a Petition to
Amend and Reargue his First PCRA Petition and All Filed
Petitions, and on September 23, 2015, filed a motion to modify
sentence. The court [deemed] these a fifth [PCRA petition].
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PCRA Court Memorandum, 10/22/15, at 1-3. On January 7, 2016, the PCRA
court dismissed Appellant’s fifth PCRA petition as untimely. This pro se
appeal follows.
Prior to addressing Appellant’s substantive claims, we must first
determine whether the PCRA court correctly concluded that Appellant’s latest
pro se 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
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 at
651-52 (citing 42 Pa.C.S.A. § 9545(b)(2)). 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); see
also Pa.R.A.P. 302(a) (providing that issues not raised before the lower
court are waived and cannot be raised for the first time on appeal).
Because Appellant failed to file a direct appeal, Appellant’s judgment of
sentence became final on July 10, 2008, thirty days after the time for filing a
direct appeal to this Court expired. See 42 Pa.C.S.A. § 9545(b)(3).
Therefore, Appellant needed to file the petition at issue by July 10, 2009 in
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order for it to be timely. Appellant filed the instant petition almost six years
later; it is blatantly untimely unless he has satisfied his burden of pleading
and proving that one of the enumerated exceptions applies.
In his PCRA petition, Appellant alleged three exceptions to the
timeliness requirement. However, Appellant failed to assert any of these
exceptions in his Rule 1925(b) statement or in his appellate brief. By
abandoning these arguments, he has waived all claims that an enumerated
exception applies to his PCRA petition. See Commonwealth v. Castillo,
888 A.2d 775, 780 (Pa. 2005) (“Any issues not raised in a Pa.R.A.P. 1925(b)
statement will be deemed waived.”).
In sum, Appellant’s latest PCRA petition is untimely, and he waived
any exception to the timeliness requirements of the PCRA. Thus, the PCRA
court properly concluded that it lacked jurisdiction and correctly denied
Appellant post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/13/2016
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