J-S66023-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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