J-S04018-15

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOZSEF GYETVAI,

Appellant No. 716 MDA 2014

Appeal from the PCRA Order entered March 20, 2014,

in the Court of Common Pleas of Lackawanna County,

Criminal Division, at No(s): CP-35-CR-0003461-2007

BEFORE: BOWES, ALLEN, and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.: FILED FEBRUARY 09, 2015

Jozsef Gyetvai (“Appellant”) appeals pro se from the order denying his 

untimely petition for post-conviction relief filed pursuant to the Post 

Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.1

The PCRA court summarized the pertinent facts and procedural history 

as follows:

On February 28, 2008, [Appellant] pled guilty to one 

count of rape of a child. In exchange, the other charges 

against [Appellant] were dropped. These charges arose 

between March and November of 2007 when [Appellant] 

repeatedly sexually abused his ten-year-old stepdaughter. 

____________________________________________

1 Given our disposition, we deny the Commonwealth’s motion to quash as 

moot.
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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 7, 2010, [PCRA counsel] filed a 

Motion to Withdraw Pursuant to a [Turner/Finley] Letter. 

On June 15, 2010, [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 [Appellant’s second 

PCRA] petition.

On September 30, 2013, [Appellant] filed his third PCRA 

petition, and on December 3, 2013 filed a motion in 

support. On January 16, 2014 this court issued a Notice of 

Intent to Dismiss and on March 20, 2014, dismissed the 

petition.

PCRA Court Opinion, 1/16/14, at 1-2. This timely appeal followed. Both 

Appellant and the PCRA court have complied with Pa.R.A.P. 1925.

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 
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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). 

Before addressing the issues Appellant presents on appeal, we must 

first consider whether the PCRA court properly determined that Appellant’s 

petition was untimely. The timeliness of a post-conviction 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 
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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 

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.”).

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. 42 

Pa.C.S.A. § 9545(b)(3). Therefore, Appellant had to file the PCRA petition at 

issue by July 10, 2009 in order for it to be timely. As Appellant filed the 

instant petition on September 30, 2013, it is 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. Indeed, Appellant does not even acknowledge the untimeliness of 

his latest PCRA petition in his appellate brief. Thus, the PCRA court correctly 

determined that it lacked jurisdiction to consider Appellant’s PCRA petition. 
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We therefore affirm the PCRA court’s order denying Appellant postconviction relief.

Motion to Quash denied as moot. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/9/2015