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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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”)1as 

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 371⁄2 to 75 years’ 

____________________________________________

*

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 

____________________________________________

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