J-S20011-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 JOHNATHAN KEITH GODINES,                  :
                                           :
                    Appellant              :        No. 714 WDA 2018

                 Appeal from the PCRA Order April 18, 2018
              in the Court of Common Pleas of Fayette County
            Criminal Division at No(s): CP-26-CR-0000524-2012

BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                             FILED JUNE 28, 2019

      Johnathan Keith Godines (“Godines”) appeals, pro se, from the Order

dismissing his second Petition for relief filed pursuant to the Post Conviction

Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      In October 2013, following a jury trial, Godines was convicted of third-

degree murder, aggravated assault, simple assault, recklessly endangering

another person, and disorderly conduct, arising out of a physical altercation

that ultimately resulted in the death of John Eicholtz. The trial court sentenced

Godines to an aggregate term of 20 to 40 years in prison. Godines filed a

post-sentence Motion for modification of sentence, which the trial court

denied. On direct appeal, this Court vacated Godines’s aggravated assault

conviction, based upon the fact that the aggravated assault and third-degree
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murder convictions should have merged for sentencing purposes, 1 and

affirmed Godines’s judgment of sentence in all other respects.            See

Commonwealth v. Godines, 116 A.3d 675 (Pa. Super. 2014) (unpublished

memorandum).          Godines did not seek allowance of appeal with the

Pennsylvania Supreme Court.

       Godines filed his first pro se PCRA Petition on September 30, 2015. The

PCRA court appointed counsel, who filed an Amended Petition on Godines’s

behalf. Additionally, Godines was permitted to employ a medical expert in

pathology to review medical records pertaining to the victim’s death. After

PCRA counsel withdrew as a result of a conflict of interest, the PCRA court

appointed Godines new counsel. The PCRA court conducted a hearing, and

subsequently denied Godines’s first Petition on October 4, 2016. This Court

affirmed the denial of relief. See Commonwealth v. Godines, 169 A.3d

1190 (Pa. Super. 2017) (unpublished memorandum).

       On October 20, 2017, Godines, pro se, filed the instant PCRA Petition.

The PCRA court issued a Pa.R.Crim.P. 907 Notice of its intent to dismiss

Godines’s second Petition on December 5, 2017.        Godines filed a pro se




____________________________________________


1 Because the trial court had ordered the separate aggravated assault
sentence to run concurrently with the third-degree murder sentence, this
Court was not required to remand for resentencing.




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Response.2 On April 18, 2018, the PCRA court dismissed Godines’s second

Petition as untimely filed, and this timely appeal followed.3

             Our standard of review regarding a PCRA court’s order is
       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.
____________________________________________


2 Godines had also filed a Notice of Appeal on December 20, 2017, and an
Application for permission to proceed in forma pauperis on January 12, 2018.
On March 2, 2018, this Court entered an Order quashing Godines’s appeal as
prematurely filed.

3 The PCRA court had previously entered an Order dismissing Godines’s second
Petition on February 5, 2018. Godines filed a timely appeal from that Order,
which was docketed in this Court at 323 WDA 2018. Godines also filed a court-
ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on
appeal. On April 18, 2018, the PCRA court re-filed an identical Order
dismissing Godines’s Petition as untimely filed (after Godines had filed an
Application to Proceed in District Court Without Prepaying Fees or Costs in the
United States District Court for the Western District of Pennsylvania, as well
as a Petition for writ of habeas corpus). Godines filed a timely Notice of Appeal
from the PCRA court’s April 18, 2018 Order, which was docketed in this Court
at 714 WDA 2018. The PCRA court did not direct Godines to file a new concise
statement. Subsequently, on June 15, 2018, this Court entered an Order
directing that the appeals at 323 WDA 2018 and 714 WDA 2018 be listed
consecutively before a single panel of this Court. On July 27, 2018, this Court
dismissed only the appeal at 323 WDA 2018, due to Godines’s failure to file
an appellate brief. Godines filed an Application for Clarification at both dockets
on August 7, 2018, indicating that because there were two different docket
numbers regarding the same underlying case, he was unsure at which docket
he should file his brief. This Court subsequently entered an Order (which was
entered at 714 WDA 2018 on March 21, 2019, but was not entered at 323
WDA 2018 until May 14, 2019) granting Godines’s Application for Clarification,
and directing that the two dockets be consolidated for appeal. However, the
dockets were never consolidated. In fact, the Order consolidating the appeals
was entered after the Order dismissing the appeal at 323 WDA 2018. In light
of this unique procedural posture, and because Godines timely filed an appeal
from each of the PCRA court’s identical Orders, we will consider Godines’s
appeal as properly and timely filed from the PCRA court’s April 18, 2018 Order
dismissing his Petition.

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Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011) (citations

omitted).

      Initially, under the PCRA, any PCRA petition, “including a second or

subsequent petition, shall be filed within one year of the date the judgment

becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1) (emphasis added). A judgment

of sentence becomes final “at the conclusion of direct review, including

discretionary review in the Supreme Court of the United States and the

Supreme Court of Pennsylvania, or at the expiration of time for seeking the

review.”    Id. § 9545(b)(3).      The PCRA’s timeliness requirements are

jurisdictional in nature and a court may not address the merits of the issues

raised if the PCRA petition was not timely filed. Commonwealth v. Albrecht,

994 A.2d 1091, 1093 (Pa. 2010).

      Here, Godines’s judgment of sentence became final on December 31,

2014, when the time for filing a petition for allowance of appeal with the

Pennsylvania Supreme Court expired.         See Pa.R.A.P. 1113(a).      Because

Godines did not file the instant PCRA Petition until October 2017, it is facially

untimely.

      However, Pennsylvania courts may consider an untimely petition if the

appellant can explicitly plead and prove one of three exceptions set forth under

42 Pa.C.S.A. § 9545(b)(1)(i-iii). Any petition invoking one of these exceptions




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“shall be filed within 60 days[4] of the date the claim could have been

presented.” Id. § 9545(b)(2) (footnote added); Albrecht, 994 A.2d at 1094.

       In his brief, Godines identifies seven claims regarding the effectiveness

of his trial and PCRA counsel. However, Godines fails to properly plead and

prove any of the three statutory exceptions, nor does he acknowledge that his

second Petition is untimely.5 See Commonwealth v. Crews, 863 A.2d 498,

501 (Pa. 2004) (stating that “it is the petitioner’s burden to plead in the

petition and prove that one of the exceptions applies. That burden necessarily

entails an acknowledgement by the petitioner that the PCRA petition under

review is untimely but that one or more of the exceptions apply.” (citation and

emphasis omitted)). Additionally, “a claim that counsel was ineffective will

not save an untimely PCRA petition.”           Commonwealth v. Carr, 768 A.2d

1164, 1167 (Pa. Super. 2001). Because Godines’s Petition is untimely, and



____________________________________________


4  Section 9545(b)(2) was amended on October 24, 2018, effective in 60 days
(i.e., Dec. 24, 2018), extending the time for filing from 60 days of the date
the claim could have been first presented, to one year. The amendment
applies to claims arising on December 24, 2017, or thereafter. See Act 2018,
Oct. 24, P.L. 894, No. 146, § 3 (hereinafter “Act 146”). However, as Godines
filed his Petition prior to December 24, 2017, the one-year time limit does not
apply to the instant case.

5  Godines provides a cursory citation to 42 Pa.C.S.A. § 9545(b)(1)(ii)
(concerning newly-discovered facts), and states that his Petition is timely
under the one-year time limit provided for in Act 146. See Brief for Appellant
at 17. However, the enactment of Act 146 is not, as Godines asserts, a “new
law” for purposes of determining the timeliness of a PCRA petition. Further,
Godines fails to assert that any of his ineffectiveness claims are predicated on
newly-discovered facts.

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fails to raise any of the timeliness exceptions, we may not address the merits

of his claims. See Crews, supra; see also Albrecht, 994 A.2d at 1094.

      Based upon the foregoing, we affirm the PCRA court’s Order dismissing

Godines’s Petition as untimely filed.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/28/2019




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