Com. v. Hawkins, R.

J-S37012-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD HAWKINS :
:
Appellant : No. 908 EDA 2022
Appeal from the PCRA Order Entered March 15, 2022
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0000604-2009
BEFORE: BOWES, J., LAZARUS, J., and OLSON, J.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 15, 2022
Richard Hawkins appeals from the order dismissing his fourth petition
filed pursuant to the Post Conviction Relief Act (“PCRA”) as untimely. We
affirm.
On October 22, 2008, Appellant and Demetrius Oglesby committed an
armed robbery of the employee working the “Silver & Gold” kiosk at the
Springfield Mall in Delaware County, Pennsylvania. Police officers reviewed
the mall security footage and recognized Mr. Oglesby. Once apprehended, he
identified Appellant as his co-conspirator. Appellant was arrested and charged
with robbery and related offenses.
On July 29, 2009, Appellant entered a negotiated guilty plea to robbery
and criminal conspiracy. The trial court accepted the plea and sentenced
Appellant, in accordance with the negotiated terms, to an aggregate term of
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seventeen and one half to forty years of incarceration.1 Appellant did not file
a post-sentence motion or direct appeal.
In 2016, Appellant filed his first pro se PCRA petition, claiming he was
serving an illegal sentence because the crimes of criminal conspiracy and
robbery were invalid.2 Appointed counsel filed a petition to withdraw and “no
merit letter” pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en
banc). The PCRA court reviewed the submission, agreed with counsel that the
claims Appellant wished to raise were meritless, and issued Pa.R.Crim.P. 907
notice of its intent to dismiss Appellant’s petition without a hearing. On June
30, 2017, the PCRA court dismissed the petition. Appellant did not appeal this
decision.
In 2019, Appellant filed his second pro se PCRA petition alleging that
the trial court erred by not merging his robbery and conspiracy to commit
robbery convictions and requesting that the court reconsider his sentence.
See Second PCRA Petition, 3/4/19, at 1-5. The Commonwealth filed an
answer arguing that the petition was untimely and should be dismissed
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1The parties agreed that Appellant would receive a sentence of ten to twenty
years for the robbery and a consecutive seven and one half to twenty years
of incarceration for conspiracy to commit robbery. See N.T. Guilty Plea &
Sentencing Hearing, 7/29/09, at 5-7.
2 This document does not appear in the certified record. However, the PCRA
court clarifies that this is because the petition was mistakenly filed in the civil
division of the Delaware County Court of Common Pleas and was not
immediately transferred to the criminal division. See Order, 9/8/16, at 1 n.1.
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without a hearing since the court lacked jurisdiction to address the merits of
the issues raised. See Commonwealth’s Answer, 4/30/19, at 2-3. The PCRA
court agreed with the Commonwealth and issued Rule 907 notice of its intent
to dismiss the petition as untimely. Having received no response from
Appellant, on June 11, 2019, the PCRA court dismissed the petition. See
Order, 6/11/19, at 1. Appellant did not appeal this decision.
On July 2, 2020, Appellant filed a “Writ of Errors Coram Nobis”
challenging the legality of his sentence, which the court properly treated as a
third PCRA petition and issued Rule 907 notice of its intent to dismiss the
petition as untimely. See Commonwealth v. Taylor, 65 A.3d 462, 465
(Pa.Super. 2013) (reiterating the well-established principle that the PCRA is
intended to be the sole means of achieving post-conviction relief for all
cognizable issues). Appellant submitted a response, arguing that his petition
should not be dismissed as he had discovered new facts that the sentence was
unconstitutional. In the response, Appellant did not detail the alleged new
facts. On September 10, 2020, the PCRA court dismissed Appellant’s third
PCRA petition. Appellant did not appeal that decision.
Over one year later, on December 21, 2021, Appellant filed documents
entitled “memorandum of law and [argumentative] summation,” “motion for
reinstatement of PCRA for amendments thereto,” and a “motion for
resentence consideration.” In the motions, Appellant repeated earlier
arguments regarding illegal sentencing issues, requested reconsideration of
his sentence, and sought reinstatement of his appellate rights from the
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dismissal of his third PCRA petition. Appellant alleged that reinstatement was
needed because the COVID-19 pandemic prevented him from submitting a
timely amended petition and notice of appeal. The PCRA court construed
these three motions collectively as a fourth PCRA petition. On March 14, 2022,
the PCRA court issued an order denying the petition. This timely appeal
followed. The PCRA court did not request that Appellant file a Pa.R.A.P.
1925(b) concise statement, but did advance a Rule 1925(a) opinion.
Appellant raises the following issues for our review:
1. Was the trial court in error for neglecting to specify its reasons for
(1) reducing the minimum term of conspiracy and not the
minimum term for robbery, (2) conspiracy and robbery terms and
(3) for not justifying its reasons for not imposing both sentences
to run concurrently?
2. Was trial counsel in error for not pursuing a direct appeal, to
challenge the issues raised in numeration 1 above?
3. Was the PCRA court in error for not allowing Appellant to have his
PCRA reinstated, following [COVID-19] by relying upon
regulations which doesn’t allow for delays to have a petition
reactivated and allow for amendments based upon the inactions
of the court to justify its sentences; during the sentencing phase,
the ineffectiveness of counsel, and a deprivation of access to the
courts due to no fault of Appellant during a crises; in contrast to
case law and a constitutionality challenge of statutory law
application(s) enforcements?
Appellant’s brief at 3.
Before we may consider the merits of Appellant’s claims, we must first
determine whether the petition was timely filed. “Our standard of review of a
PCRA court’s dismissal of a PCRA petition is limited to examining whether the
PCRA court’s determination is supported by the record evidence and free of
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legal error.” Commonwealth v. Whitehawk, 146 A.3d 266, 269 (Pa.Super.
2016). For a petition to be timely under the PCRA, it must be filed within one
year of the date that a petitioner’s judgment of sentence became final. See
42 Pa.C.S. § 9545(b)(1). Appellant’s petition, filed more than twelve years
after his judgment of sentence became final, is patently untimely. Thus,
unless Appellant pled and proved one of the three exceptions to the PCRA
time-bar outlined in 42 Pa.C.S. § 9545(b)(1)(i-iii),3 we cannot address the
claims he asserted therein.
Appellant’s petition is facially untimely and he did not allege below or in
this appeal any exceptions to the time-bar. Therefore, the PCRA court did not
err when it found that his petition was untimely filed. See, e.g.,
Commonwealth v. Miller, 102 A.3d 988, 995 Pa.Super. 2014) (“[A]lthough
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3 These exceptions are:
(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).
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not technically waivable, a legality of sentence claim may nevertheless be lost
should it be raised in an untimely PCRA petition for which no time-bar
exception applies, thus depriving the court of jurisdiction over the claim.”
(cleaned up)).4
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/15/2022
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4 To the extent Appellant claims that the PCRA court erred when it construed
his motions as PCRA petitions no relief is due. It is well-settled that the PCRA
is intended to be the sole means of achieving post-conviction relief. See 42
Pa.C.S. § 9542; see also Commonwealth v. Fantauzzi, 275 A.3d 986, 995
(Pa.Super. 2022). Therefore, a collateral petition that raises an issue that the
PCRA statute could remedy is to be considered a PCRA petition. Id. Stated
differently, a defendant cannot escape the PCRA time-bar by simply altering
the title of his petition or motion. See Commonwealth v. Taylor, 65 A.3d
462, 466 (Pa.Super. 2013). Herein, Appellant’s various claims of sentence
illegality are cognizable under the PCRA. Id. Accordingly, we find that the
PCRA court did not err when it treated his filings as PCRA petitions.
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