Com. v. Hawkins, D. ( 2015 )

J-S18037-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DANIEL DAVID HAWKINS
Appellant No. 2174 EDA 2014
Appeal from the PCRA Order July 16, 2014
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0004684-2009
CP-39-CR-0004799-2009
CP-39-CR-0005242-2009
BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.
MEMORANDUM BY MUNDY, J.: FILED MAY 15, 2015
Appellant, Daniel David Hawkins, appeals pro se from the July 16,
2014 order dismissing, as untimely, his second petition filed pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful
review, we affirm.
On January 13, 2011, Appellant pled guilty to voluntary
manslaughter at docket number CR-39-CR-0004684-2009; manufacture of a
controlled substance and possession with intent to deliver at docket number
CP-39-CR-0004799-2009; and four counts of endangering the welfare of a
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child at docket number CR-39-CR-0005242-2009.1 On the same day, the
trial court imposed an aggregate judgment of sentence of nine to twenty
years’ imprisonment in a state correctional institution. Appellant did not file
a direct appeal from his judgment of sentence. Therefore, his judgment of
sentence became final on February 14, 2011, when the filing period for a
notice of appeal to this Court expired. See generally 42 Pa.C.S.A.
§ 9545(b)(3); Pa.R.A.P. 903(c).2
Appellant filed the instant petition for PCRA relief on June 9, 2014. As
such, it is patently untimely.3 See 42 Pa.C.S.A. § 9545(b)(1) (stating,
“[a]ny petition under this subchapter, including a second or subsequent
petition, shall be filed within one year of the date the judgment becomes
final[…]”). On June 24, 2014, the PCRA court issued an order notifying
Appellant of its intent to dismiss Appellant’s petition, pursuant to
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1
18 Pa.C.S.A. § 2503(b), 35 P.S. § 780-113(a)(30), and 18 Pa.C.S.A.
§ 4304(a)(1), respectively.
2
We observe that the 30th day fell on Saturday, February 12, 2011. When
computing the 30-day filing period “[if] the last day of any such period shall
fall on Saturday or Sunday … such day shall be omitted from the
computation.” 1 Pa.C.S.A. § 1908. As such, Appellant had until February
14, 2011 to file a timely appeal from his judgment of sentence.
3
Appellant filed his first pro se petition for PCRA relief on September 18,
2012. The PCRA court dismissed Appellant’s petition as untimely on February
4, 2013. Thereafter, this Court dismissed Appellant’s pro se appeal from the
PCRA order for failure to file a brief in conformity with the Rules of Appellate
Procedure. Commonwealth v. Hawkins, 87 A.3d 895 (Pa. Super. 2013)
(unpublished judgment order).
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Pennsylvania Rule of Criminal Procedure 907. PCRA Court Order, 6/24/14,
at 1-2. Appellant filed a response to the PCRA’s court order on July 10,
2014, and the PCRA court dismissed Appellant’s petition without a hearing
on July 16, 2014. Appellant filed his timely pro se notice of appeal on July
24, 2014.4
On appeal, Appellant raises the following issue for our review.
Was not the sentence imposed against the
Guidelines following the [Merger] and Counts
Combined, totaling into a concurrent, as Opposed to
a Consecutive. Followed by the Timeliness of Filing
the Second subsequent (PCRA)[?]
Appellant’s Brief at 3 (bracket and capitalization in original).5
We adhere to the following standard of review when presented with a
challenge to the denial of a PCRA petition.
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4
Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
5
We note that Appellant enumerates several sub-issues following the above-
quoted issue. However, all of these sub-issues raise substantive claims of
error and do not address the untimeliness of Appellant’s petition. Therefore,
they are not properly before this Court. See Commonwealth v. Ali, 86
A.3d 173, 177 (Pa. 2014) (observing the PCRA time-limits implicate the
jurisdiction of a court and its power to adjudicate a controversy). Moreover,
Appellant fails to develop the additional claims in his argument section of his
brief with any pertinent discussion or citations. See generally Appellant’s
Brief at 9-12. As such, were we able to review these issues, we would
conclude they are waived. See Pa.R.A.P. 2119; Commonwealth v. Hardy,
918 A.2d 766, 771 (Pa. Super. 2007) (observing that when defects in a brief
impede meaningful review on appeal, this Court may dismiss the appeal in
its entirety or find such unreviewable issues waived), appeal denied, 940
A.2d 362 (Pa. 2008).
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Our standard of review of the denial of a PCRA
petition is limited to examining whether the court’s
rulings are supported by the evidence of record and
free of legal error. This Court treats the findings of
the PCRA court with deference if the record supports
those findings. It is an appellant’s burden to
persuade this Court that the PCRA court erred and
that relief is due.
Commonwealth v. Feliciano, 69 A.3d 1270, 1274-1275 (Pa. Super. 2013)
(citation omitted). We also note that the “PCRA time limits are jurisdictional
in nature, implicating a court’s very power to adjudicate a controversy.” Ali,
supra. Moreover, only by operation of one of the enumerated exceptions at
Section 9545(b) can the time-period for the filing of a PCRA be extended, as
it is not subject to the doctrine of equitable tolling. Id.; accord 42
Pa.C.S.A. § 9545(b)(1).
Instantly, Appellant seeks to overcome the untimeliness of his petition
by arguing the time bar exception at Section 9545(b)(1)(ii). Appellant’s
Brief at 9. Section 9545(b)(1)(ii) provides as follows.
§ 9545. Jurisdiction and Proceedings
…
(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:
…
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(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; []
…
42 Pa.C.S.A. § 9545(b)(1)(ii). A petitioner seeking to invoke an exception to
the one-year filing period must present such claim “within sixty days of the
date the claim first could have been presented.” Commonwealth v.
Brown, --- A.3d ---, 2015 WL 500891, at *4 (Pa. Super. 2015). In order to
meet this exception, a petitioner is required to exercise due diligence, which
demands a petitioner take reasonable steps in protecting his interests. Id.
Furthermore, “[a] petitioner must explain why he could not have learned the
new facts(s) earlier with the exercise of due diligence.” Id. (citations
omitted). We strictly enforce this obligation. Id.
Appellant attempts to invoke the time-bar exception at Section
9545(b)(1)(ii) by arguing , “[c]ounsel abandoned [Appellant] by way of
failing to file [p]ost[-]sentence [m]otion(s), and [c]ollaterally attacking the
consecutive sentence(s), imposed. This fact alone become [sic] to the
attention of [A]ppellant, and [t]herefore[,] [A]ppellant filed the [s]econd
subsequent [PCRA] petition” within the sixty-day time period for filing the
claim. Appellant’s Brief at 11. Appellant adds, “[s]uch an infirmity was
compounded when [c]ounsel abandoned Appellant.” Id. In liberally
construing Appellant’s brief, we read Appellant’s argument to aver that
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Appellant was unaware of alleged errors regarding his sentence and his
counsel’s failure to file motions challenging said sentence prior to the filing
of the instant, untimely petition for PCRA relief. See id. at 10-12; In re
Ullman, 995 A.2d 1207, 1211-1212 (Pa. Super. 2010) (observing that this
Court is willing to liberally construe pro se materials but cautioning pro se
status does not confer upon an appellant a special benefit), appeal denied,
20 A.3d 489 (Pa. 2011).. Further, Appellant contends he filed the instant
petition within sixty days of learning of these alleged errors, and the newly-
discovered evidence exception applies permitting the PCRA court to review
the merits of his petition. See id. In addressing Appellant’s claims
regarding his sentence and trial counsel, the PCRA court found the following.
The [A]ppellant was sentenced on January 13,
2011, and the transcript from the guilty plea and
sentence reflects his acknowledgment that he
understood the sentence and that it complied with
the plea agreement. Not only are his assertions not
unknown facts, but waiting twenty months (20) to
file his first PCRA petition, and forty (40) months to
file his second PCRA petition, does not constitute due
diligence. The [n]otes of [t]estimony were filed on
May 26, 2011, and so [] [A]ppellant’s effort to
comply with due diligence requirement was at best
meager. Additionally, even if [] [A]ppellant
discovered what he believes were sentencing errors,
he still failed to file his PCRA petition within the sixty
(60) day time frame as required by § 9545(b)(2).
Therefore, this [c]ourt has no power to address the
merits of the PCRA petition.
[] [A]ppellant also attempts to merge claims of
ineffectiveness of counsel to avoid the jurisdictional
hurdles. This attempt is unavailing because a claim
of ineffective assistance of counsel does not save an
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otherwise untimely petition for review on the
merits.… In that regard, [A]ppellant’s claim that
counsel was ineffective for not objecting to the
imposition of sentence does not provide an exception
to the time-bar…
PCRA Court Opinion, 8/13/14, at 5-6 (citations and footnotes omitted).
We conclude the PCRA court’s findings are supported by the evidence
of record and free of legal error. See Feliciano, supra. Moreover,
Appellant has failed to persuade this Court that he is entitled to relief. See
id. As noted, Appellant’s judgment of sentence became final on February
14, 2011, and Appellant filed the instant petition on June 9, 2014. The
record belies Appellant’s claims surrounding his knowledge of his sentence,
and Appellant has failed to proffer any explanation as to why, in the exercise
of due diligence, he could not have learned of any alleged sentencing errors
and claims regarding counsel’s effectiveness within the time-frame
prescribed by the PCRA. See generally Appellant’s Petition for Post
Conviction Collateral Relief, 6/9/14, at 1-4; Appellant’s Brief at 1-12.
Moreover, Appellant, in his petition, does not raise a claim vis-à-vis
abandonment of counsel. See Appellant’s Petition for Post Conviction
Collateral Relief, 6/9/14, at 1-4. Accordingly, we would conclude any such
claim is waived.6 See Commonwealth v. Roney, 79 A.3d 595, 612 (Pa.
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6
Appellant further does not develop this claim in any meaningful fashion or
instruct this Court to which counsel he is referring in his appellate brief. As
such, meaningful appellate review of this claim would be precluded, and
(Footnote Continued Next Page)
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2013) (observing Appellant waived claim on appeal for failure to raise it
before the PCRA court).
Based on the foregoing discussion, we conclude the PCRA court
properly dismissed Appellant’s second PCRA petition as untimely, as
Appellant has failed to meet a time bar exception permitting review of the
merits of his claims. See Feliciano, supra. Therefore, the July 16, 2014
PCRA court’s order is affirmed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/15/2015
_______________________
(Footnote Continued)
were this issue properly before us, we could find the issue waived on this
basis as well. See Hardy, supra.
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