J-S50034-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

STEVEN A. GARDNER, 

 Appellant No. 418 WDA 2014 

Appeal from the PCRA Order entered February 7, 2014, 

in the Court of Common Pleas of Butler County, 

Criminal Division, at No(s): CP-10-CR-0000219-1995 

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and ALLEN, JJ. 

MEMORANDUM BY ALLEN, J.: FILED AUGUST 11, 2014 

Steven A. Gardner (“Appellant”) appeals pro se from the order denying 

his serial petition for post-conviction relief filed pursuant to the Post 

Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm. 

 The pertinent facts and protracted procedural history have been 

summarized as follows: 

 On October 20, 1995, a jury convicted [Appellant] of 

first degree murder in connection with the January 10,

1995 shooting of a man who was renting a room in 

[Appellant’s] trailer home in Cabot. Appellant was 

sentenced to life imprisonment on October 23, 1995. This 

[C]ourt affirmed the judgment of sentence on August 29, 

2000, and our supreme court denied appeal on January 

22, 2001. Commonwealth v. Gardner, 764 A.2d 122 

(Pa. Super. 2000) (unpublished memorandum), appeal 

denied, 576 Pa. 710, 785 A.2d 87 (2001). We note that 

during the pendency of both his direct appeal and 

subsequent PCRA petitions, [Appellant] has repeatedly 

filed additional pro se PCRA petitions or similar pleadings 

despite the fact that he already had a petition pending. 
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 On February 15, 2001, [Appellant] filed his first valid 

PCRA petition. Counsel was appointed and an amended 

PCRA petition was filed. A hearing was held on January 

21, 2004, and the petition was ultimately denied on March 

4, 2004. This [C]ourt affirmed the decision on October 24, 

2006, and our supreme court denied appeal on May 18, 

2007. Commonwealth v. Gardner, 913 A.2d 941 (Pa. 

Super. 2006) (unpublished memorandum), appeal 

denied, 592 Pa. 765, 923 A.2d 1173 (2007). 

 On November 19, 2008, [Appellant] filed a second pro 

se PCRA petition. On February 10, 2011, an order was

entered (dated February 9, 2011) denying [Appellant’s] 

second PCRA petition. On February 24, 2011, Appellant 

filed a motion to reconsider. On March 8, 2011, the court 

denied the motion to reconsider. On April 5, 2011, 

[Appellant] filed a notice of appeal, attempting to appeal 

the orders entered on February 10, 2011 and March 8, 

2011. This [appeal was docketed] at 733 WDA 2011. 

 On March 9, 2011, [Appellant] filed a third pro se PCRA 

petition. On March 25, 2011, an order was entered (dated 

March 24, 2011) denying [Appellant’s] third PCRA petition. 

On April 6, 2011, [Appellant] filed a motion to reconsider. 

On April 7, 2011, the court denied the motion to 

reconsider. On May 5, 2011, [Appellant] filed a notice of 

appeal, attempting to appeal the orders entered on March 

25, 2011 and April 7, 2011. This [appeal was docketed] at 

No. 1275 WDA 2011. 

 On August 26, 2011, Appellant filed a fourth pro se

PCRA petition. On September 7, 2011, an order was 

entered (dated September 1, 2011) denying and 

dismissing [Appellant’s] fourth PCRA petition. On 

September 23, 2011, [Appellant] filed a motion to 

reconsider. On September 30, 2011, the court entered an 

order (dated September 28, 2011) denying the motion to 

reconsider. On October 14, 2011, [Appellant] filed a 

notice of appeal, attempting to appeal the orders entered 

on September 7, 2011 and September 30, 2011. This 

[appeal was docketed] at No. 1681 WDA 2011.
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Commonwealth v. Gardner, 50 A.3d 237 (Pa. Super. 2012), unpublished 

memorandum at 3-5 (footnotes omitted)). 

 On May 8, 2012, this Court addressed all three appeals together and 

quashed at each docket. Gardner, unpublished memorandum at 2. In 

doing so, we stated: 

 Appellant has committed the same fatal error in each of 

the three appeals before us. In each instance, after the 

court below entered an order denying [his] PCRA petition, 

[Appellant] filed a motion to reconsider and then waited 

until this motion was decided before filing the notice of 

appeal. In each case, the notice of appeal was filed 

beyond 30 days after the original order was entered 

denying the PCRA petition, resulting in an untimely appeal. 

See Pa.R.A.P., Rule 903(a). 42 Pa.C.S.A. 

 It is well-settled that a motion for reconsideration does 

not toll the 30-day appeal clock unless the court grants the 

motion within the 30-day appeal period. Commonwealth 

v. Moir, 766 1253, 1254 (Pa. Super. 2000). Otherwise, a 

notice of appeal must be filed within the 30-day appeal 

period to preserve one’s appellate rights. Id. “Moreover, 

we have consistently held that an appeal from an order

denying reconsideration is improper and untimely.” Id. 

 ***

 Since all three notices of appeal were filed beyond their 

respective 30-day appeal periods, all three appeals are 

untimely and must be quashed. 

Id., unpublished memorandum at 5-6.

On June 19, 2012, this Court denied Appellant’s petition for 

reargument. On February 6, 2013, our Supreme Court denied Appellant’s 

petition for mandamus and application to proceed in forma pauperis. 

Commonwealth v. Gardner, 2013 Pa. LEXIS 199. 
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 On June 29, 2012, Appellant filed another PCRA petition, styled as an 

“Application For Restoration of Appellate Rights & Review,” with the PCRA 

court. Within this filing, Appellant took issue with this Court’s finding of 

procedural error, and sought the reinstatement of his right to file his appeals 

because we did not rule on their merits. According to Appellant, his 

procedural missteps constituted “harmless error,” which this Court should 

have overlooked. Subsequently, on November 9, 2012, Appellant filed with 

the PCRA court a “Motion to Advance or Rule on Application for Restoration 

of Appellate Rights & Review.” Although the PCRA court had yet to take 

action on Appellant’s latest filings, Appellant, on November 29, 2012, filed a 

notice of appeal to this Court. 

On December 19, 2012, the PCRA court, construing Appellant’s 2012 

filings as requests for post-conviction relief, and believing that two of 

Appellant’s 2011 appeals were still pending, entered an order denying 

Appellant’s requests without prejudice. See Order of Court, 12/19/12 (citing 

Commonwealth v. Jones, 811 A.2d 944, 1008 (Pa. 2002); 

Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000)). That same day, 

the PCRA court entered an order in which it noted Appellant’s most recent 

appeal and requested a Pa.R.A.P. 1925(b) statement of errors complained of 

on appeal. Subsequently, both Appellant and the PCRA court complied with 

Pa.R.A.P. 1925. 

 In a judgment order entered July 8, 2013, this Court quashed 

Appellant’s appeal. By doing so, we noted that Appellant filed his appeal 
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prematurely because no appealable order had been entered upon the 

docket, and because the PCRA court’s subsequent order [dismissing 

Appellant’s petition without prejudice] did not “cure this basic jurisdiction 

requirement.” See Commonwealth v. Gardner, 82 A.3d 1059 (Pa. Super. 

2013), at 2. On August 15, 2013, this Court denied Appellant’s petition for 

reargument and/or reconsideration. 

 Undaunted, on September 6, 2013, Appellant filed another PCRA 

petition, styled as an “Application for Restoration of Appellate Rights & 

Review [Nunc Pro Tunc]”, in which he repeated his claims regarding 

“harmless error” and sought the restoration of his PCRA appellate rights. 

Appellant further asserted that his latest filing was timely because it was 

filed “within the 60 day RULE: Commonwealth v. Beasley, 741 A.2d 1259 

[(Pa. 1999)]”. 

 On December 20, 2013, the PCRA court issued Pa.R.Crim.P. 907 notice 

of intent to dismiss Appellant’s latest PCRA petition without a hearing 

because it was untimely and Appellant had not established any exception to 

the PCRA’s time bar. Appellant filed his response on January 13, 2014. By 

order entered February 7, 2014, the PCRA court dismissed Appellant’s latest 

petition. On February 14, 2014, Appellant filed a motion for reconsideration, 

which the PCRA court denied on March 11, 2014. Learning from his past 

mistakes, Appellant also filed a timely appeal to this Court on March 3, 

2014. Subsequently, both Appellant and the PCRA court have complied with 

Pa.R.A.P. 1925. 
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This Court’s standard of review regarding an order dismissing a 

petition under the PCRA is whether the determination of the PCRA court is 

supported by the evidence of record and is free of legal error. 

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA 

court’s findings will not be disturbed unless there is no support for the 

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 

1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold a 

hearing on the petition if the PCRA court determines that the petitioner’s 

claim is patently frivolous and is without a trace of support in either the 

record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011 

(Pa. Super. 2001). Because this is not Appellant’s first petition for postconviction relief, he must meet a more stringent standard. “A second or any 

subsequent post-conviction request for relief will not be entertained unless a 

strong prima facie showing is offered to demonstrate that a miscarriage of 

justice may have occurred.” Commonwealth v. Burkhardt, 833 A.2d 233, 

236 (Pa. Super. 2003) (en banc) (citations omitted). “A petitioner makes a 

prima facie showing if he demonstrates that either the proceedings which 

resulted in his conviction were so unfair that a miscarriage of justice 

occurred which no civilized society could tolerate, or that he was innocent of 

the crimes for which he was charged.” Id. 

 Appellant seeks to reinstate his right to appeal and have his 

previously-filed triad of PCRA petitions considered on their merits. Before 
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doing so, we must determine whether the PCRA court properly determined 

that Appellant’s latest filing was untimely. The timeliness of a postconviction petition is jurisdictional. Commonwealth v. Albrecht, 994 A.2d 

1091, 1093 (Pa. 2010) (citation omitted). Thus, if a petition is untimely, 

neither an appellate court nor the PCRA court has jurisdiction over the 

petition. Id. “Without jurisdiction, we simply do not have the legal 

authority to address the substantive claims” raised in an untimely petition. 

Id.

 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 

becomes final unless the petition alleges, and the petitioner proves, an 

exception to the time for filing the petition. Commonwealth v. GamboaTaylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under 

these exceptions, the petitioner must plead and prove that: “(1) there has 

been interference by government officials in the presentation of the claim; or 

(2) there exists after-discovered facts or evidence; or (3) a new 

constitutional right has been recognized.” Commonwealth v. Fowler, 930 

A.2d 586, 591 (Pa. Super. 2007) (citations omitted). A PCRA petition 

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

the date the claim first could have been presented.” Gamboa-Taylor, 753 

A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to

the time restrictions of the PCRA must be pled in the petition, and may not 
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be raised for the first time on appeal. Commonwealth v. Burton, 936 

A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not 

raised before the lower court are waived and cannot be raised for the first 

time on appeal.”).

Because Appellant did not file a writ of certiorari to the United States 

Supreme Court following our Supreme Court’s denial of his petition for 

allowance of appeal on January 22, 2001, his judgment of sentence became 

final on or about April 23, 2001, when the ninety-day time period for filing a 

writ of certiorari with the United States Supreme Court expired. See 

U.S.Sup.Ct.R. 13; 42 Pa.C.S.A. § 9545(b)(3). Therefore, Appellant had to 

file the instant petition by April 23, 2002, in order for it to be timely. As 

Appellant filed the instant petition on September 6, 2013, it is patently 

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

of the enumerated exceptions applies. See Commonwealth v. Beasley, 

741 A.2d 1258, 1261 (Pa. 1999). 

Appellant has failed to plead and prove any exception to the PCRA’s 

time bar. See 9545(b)(1)(i-iii). Instead, within his brief, Appellant 

cryptically asserts that all of his previously filed PCRA motions “were filed 

within the time exceptions of 42 Pa.C.S.A. § 9545 (b)(1)(ii) – the 60 day 

rule[,]” without further explanation. Appellant’s Brief at 10 (underline 

omitted). According to Appellant, his “past error towards filing a tardy 

notice of appeal should be excused as he was on the mistaken impression” 
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that the filing of a motion for reconsideration would toll the thirty-day appeal 

period. Appellant’s Brief at 10. We disagree. Appellant cannot rely on his 

own ineffectiveness as a basis for satisfying a PCRA time bar exception. See 

generally 42 Pa.C.S.A. (b)(4) (providing that “government officials” shall 

not include defense counsel); Commonwealth v. Crews, 863 A.2d 498 

(Pa. 2004). 

In sum, the PCRA court correctly determined that it lacked jurisdiction 

to consider Appellant’s substantive issues raised in his latest filing. We 

therefore affirm the PCRA court’s order denying Appellant post-conviction 

relief. 

Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/11/2014