Com. v. Godfrey, R. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
RACHIEM GODFREY :
:
Appellant : No. 228 MDA 2022
Appeal from the PCRA Order Entered February 1, 2022
In the Court of Common Pleas of Lebanon County Criminal Division at
No(s): CP-38-CR-0001154-2008
BEFORE: PANELLA, P.J., BENDER, P.J.E., and LAZARUS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: NOVEMBER 17, 2022
Appellant, Rachiem Godfrey, appeals from the post-conviction court’s
February 1, 2022 order dismissing, as untimely, his serial petition filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.
We affirm.
The Commonwealth aptly sets forth the background of this matter as
follows:
On March 2, 2009, a Lebanon County jury … found [Appellant]
guilty of persons not to possess firearms, firearms not to be
carried without a license, possession of a firearm with an altered
manufacturer’s number, resisting arrest, and disorderly conduct.
[The trial court] sentenced him to an aggregate term of twelve
and one-half to twenty-five years’ imprisonment. This Court
affirmed his judgment of sentence on July 26, 2011.
Commonwealth v. Godfrey, 32 A.3d 281 (Pa. Super. 2011) …
(unpublished memorandum). He did not seek allowance of appeal
in the Pennsylvania Supreme Court.
On July 13, 2012, [Appellant] filed a petition pursuant to the
[PCRA]…. It was denied as meritless. This Court affirmed, and
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he did not seek further review. Commonwealth v. Godfrey, 82
A.3d 1073 (Pa. Super. 2013) … (unpublished memorandum).
Between 2014 and 2020, [Appellant] filed five more PCRA
petitions, all of which were denied or, in one instance, withdrawn.
He filed the instant petition — his seventh — pro se on November
12, 2021. Counsel … was appointed and filed an amended
petition, claiming [Appellant’s] sentence is illegal because the
court failed to hold an ability-to-pay hearing before imposing fines
and costs at his 2009 sentencing proceeding. Relatedly, he also
claimed that the Department of Corrections improperly deducted
$1,893.65 in illegal fines and costs from him during his
imprisonment. On February 1, 2022, … the PCRA [c]ourt denied
his petition without a hearing.[1, 2]
Commonwealth’s Brief at 2-3 (some citations and footnote omitted).
On February 7, 2022, Appellant filed a timely notice of appeal. On
February 16, 2022, the PCRA court instructed Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)
within 21 days, warning that any issue not properly included in a timely-filed
concise statement would be deemed waived. Appellant made no filing. On
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1 In its February 1, 2022 order dismissing Appellant’s petition, the PCRA court
determined that Appellant had “fail[ed] to raise any claim that would defeat
the untimeliness of his [petition].” Order, 2/1/22, at 1 (unpaginated).
2 Based upon our review of the record, it does not appear that the PCRA court
issued Appellant notice of its intent to dismiss his petition without a hearing
pursuant to Pa.R.Crim.P. 907. See Pa.R.Crim.P. 907(1) (“If the judge is
satisfied from this review that there are no genuine issues concerning any
material fact and that the defendant is not entitled to post-conviction collateral
relief, and no purpose would be served by any further proceedings, the judge
shall give notice to the parties of the intention to dismiss the petition and shall
state in the notice the reasons for the dismissal.”). However, Appellant has
not objected to this lack of notice, and therefore such issue is waived. See
Commonwealth v. Wooden, 215 A.3d 997, 1001 (Pa. Super. 2019) (noting
that “an appellant’s failure to challenge the absence of a Rule 907 notice
constitutes waiver”) (citation omitted).
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April 19, 2022, the PCRA court issued a Rule 1925(a) statement, noting that
Appellant never filed a concise statement and that, therefore, all his issues
were waived. Thereafter, on April 26, 2022, Appellant filed a concise
statement, claiming that the trial court committed an error of law and/or
abused its discretion in dismissing his petition.3
On appeal, Appellant raises one issue for our review:
Did the [PCRA c]ourt commit revers[i]ble error when it denied
[Appellant’s] PCRA application for consideration of ability to pay
costs and fines?
Appellant’s Brief at 2.
Initially, we must ascertain whether Appellant’s failure to timely file his
Rule 1925(b) concise statement has waived his issue for our review. “This
Court has held that both the complete failure to file the 1925(b) statement …
and the untimely filing of a 1925(b) statement is per se ineffectiveness
because it is without reasonable basis designed to effectuate the client’s
interest and waives all issues on appeal.” Commonwealth v. Sanchez-
Frometa, 256 A.3d 440, 442-43 (Pa. Super. 2021) (cleaned up). “While
these circumstances often require a remand, where the trial court addresses
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3The late filing of the concise statement is not the only instance of Appellant’s
counsel’s untimeliness in this matter. Because counsel failed to file a brief on
behalf of Appellant, despite being so ordered, this Court had to remand the
case on June 22, 2022, for the PCRA court to determine whether counsel had
abandoned Appellant. Shortly thereafter, on July 11, 2022, counsel filed
Appellant’s brief. We admonish Appellant’s counsel for his lack of diligence in
handling this matter.
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the issues raised in an untimely Rule 1925(b) statement, we need not remand
but may address the issues on their merits.” Id. at 443 (cleaned up).
Here, we determine that Appellant’s counsel was per se ineffective in
failing to file a timely concise statement. Though the PCRA court’s Rule
1925(a) opinion only mentioned Appellant’s failure to comply with Rule
1925(b) and found waiver on that basis, the PCRA court stated in its February
1, 2022 order that Appellant had “fail[ed] to raise any claim that would defeat
the untimeliness of his [petition].” Order, 2/1/22, at 1 (unpaginated). As
such, because we can glean from the record why the trial court dismissed
Appellant’s petition in the first place, we need not remand this case for the
preparation of a supplemental Rule 1925(a) opinion. Accordingly, we proceed
to review Appellant’s issue.
This Court’s standard of review regarding an order denying 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.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the
timeliness of Appellant’s petition, because the PCRA time limitations implicate
our jurisdiction and may not be altered or disregarded in order to address the
merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.
2007) (stating PCRA time limitations implicate our jurisdiction and may not be
altered or disregarded to address the merits of the petition). Under the PCRA,
any petition for post-conviction relief, including a second or subsequent one,
must be filed within one year of the date the judgment of sentence becomes
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final, unless one of the following exceptions set forth in 42 Pa.C.S. §
9545(b)(1)(i)-(iii) applies:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition alleges
and the petitioner proves that:
(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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, Section 9545(b)(2) requires that
any petition attempting to invoke one of these exceptions “be filed within one
year of the date the claim could have been presented.” 42 Pa.C.S. §
9545(b)(2).
Here, Appellant’s judgment of sentence became final on August 25,
2011, when his time to file a petition for allowance of appeal with our Supreme
Court expired. See Pa.R.A.P. 1113(a) (“[A] petition for allowance of appeal
shall be filed with the Prothonotary of the Supreme Court within 30 days after
the entry of the order of the Superior Court or the Commonwealth Court
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sought to be reviewed.”). Thus, he had until August 25, 2012, to file a timely
petition. Consequently, his petition filed on November 12, 2021, is facially
untimely and, for this Court to have jurisdiction to review the merits thereof,
Appellant must prove that he meets one of the exceptions to the timeliness
requirements set forth in 42 Pa.C.S. § 9545(b).
Appellant does not present an argument that he meets a timeliness
exception in his brief, thus waiving any such claim for our review.
Commonwealth v. Thoeun Tha, 64 A.3d 704, 713 (Pa. Super. 2013)
(“Failure to present or develop an argument in support of a claim causes it to
be waived.”) (citation omitted).4 Accordingly, no relief is due, and we affirm
the PCRA court’s order dismissing his petition.
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4 In addition, as the Commonwealth discerns, Appellant also did not properly
plead an exception to the PCRA’s time-bar below. The Commonwealth
explains:
Although [Appellant] made a passing reference to Section
9545(b)(1)(iii) in the introductory paragraph [of his amended
petition] — stating that he “respectfully files the following
[a]mended [p]etition for [p]ost-[c]onviction [r]elief pursuant to
42 Pa.C.S. § 9545(b)(1)(iii)[]” — that was insufficient to
constitute proper pleading. He did not identify the specific
constitutional right he was supposedly asserting, nor did he cite
any relevant legal authority in support of his claim.
He also did not identify any facts or develop any argument to
explain how he could possibly have proved the constitutional[-]
right exception applied to his case.
Commonwealth’s Brief at 8; see also Appellant’s PCRA Petition, 11/12/21, at
3 (claiming that Appellant meets the timeliness exceptions under Section
9545(b)(1)(ii) and (iii), but failing to provide relevant information in support
of establishing such exceptions). Moreover, as the Commonwealth correctly
(Footnote Continued Next Page)
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2022
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observes, to the extent Appellant alleges that his sentence is illegal, such a
claim is still subject to the PCRA’s time-bar. See Commonwealth’s Brief at 8-
9; see also Commonwealth v. Berry, 877 A.2d 479, 482 (Pa. Super. 2005)
(en banc) (“[C]hallenges to the legality of the sentence are never waived.
This means that a court may entertain a challenge to the legality of the
sentence so long as the court has jurisdiction to hear the claim. In the PCRA
context, jurisdiction is tied to the filing of a timely PCRA petition.”) (citation
omitted).
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