Com. v. Hawkins, T.

Superior Court of Pennsylvania

Com. v. Hawkins, T.

DecidedSeptember 28, 2020

Docket2330 EDA 2019

StatusUnpublished

This text of Com. v. Hawkins, T. (Com. v. Hawkins, T.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Com. v. Hawkins, T., (Pa. Ct. App. 2020).

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Opinion

J-S39003-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TYRIK HAWKINS : : Appellant : No. 2330 EDA 2019

Appeal from the PCRA Order Entered July 10, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0402001-2006

BEFORE: LAZARUS, J., OLSON, J., and PELLEGRINI, J.*

MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 28, 2020

Tyrik Hawkins appeals pro se from the order, entered in the Court of

Common Pleas of Philadelphia County, denying his petition filed pursuant to

the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After

careful review, we affirm.

Following a bench trial, on June 6, 2007, Hawkins was convicted of third-

degree murder, criminal conspiracy to commit murder, possessing an

instrument of crime, and recklessly endangering another person. The charges

arose out of the November 7, 2005 shooting death of 16-year-old Daniel

Starling.

On August 1, 2007, the court sentenced Hawkins to an aggregate term

of 25 to 50 years’ imprisonment. On appeal, this Court affirmed Hawkins’

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* Retired Senior Judge assigned to the Superior Court. J-S39003-20

judgment of sentence. See Commonwealth v. Hawkins, No. 2250 EDA

2007 (Pa. Super., filed Feb. 13, 2009) (unpublished memorandum decision).

Hawkins did not file a petition for allowance of appeal in the Pennsylvania

Supreme Court.

On August 26, 2009, Hawkins filed a pro se PCRA petition. The PCRA

court appointed counsel, who filed an amended petition on March 3, 2010.

The Commonwealth filed a motion to dismiss and defense counsel filed a brief

in opposition on behalf of Hawkins. On November 22, 2010, the PCRA court

issued notice of its intent to dismiss Hawkins’ petition pursuant to Pa.R.Crim.P.

Rule 907, and ultimately dismissed Hawkins’ petition on February 18, 2011.

Hawkins appealed, and this Court affirmed. See Commonwealth v.

Hawkins, No. 761 EDA 2011 (Pa. Super., filed Jan. 31, 2013) (unpublished

memorandum decision). Hawkins filed a petition for allowance of appeal in

the Pennsylvania Supreme Court, which the Court denied on July 16, 2013.

See Commonwealth v. Hawkins, 102 EAL 2013 (Pa. filed July 16, 2013).

Hawkins filed a second pro se PCRA petition on November 19, 2015.

The PCRA court issued notice of intent to dismiss pursuant to Rule 907.

Hawkins did not file a response, and the PCRA court dismissed the petition as

untimely. Hawkins filed a pro se appeal, which this Court dismissed for failure

to file a brief. See Commonwealth v. Hawkins, No. 2026 EDA 2018 (Pa.

Super. filed Oct. 19, 2018).

On February 8, 2019, Hawkins filed a third pro se PCRA petition. The

PCRA court issued Rule 907 notice. Hawkins did not file a response. On May

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14, 2019, the PCRA court dismissed the petition as untimely. Hawkins did not

appeal that order.

On May 15, 2019, Hawkins filed the instant pro se petition, his fourth.

The court issued Rule 907 notice of intent to dismiss, and Hawkins filed a

response. On July 10, 2019, the PCRA court dismissed the petition as

untimely. Hawkins filed this timely appeal. He raises one issue for our review:

“Did the PCRA court err by dismissing the PCRA petition as untimely and

without holding an evidentiary hearing?” Appellant’s Brief, at 4.1

Appellate review of a PCRA court’s dismissal of a PCRA petition is limited

to an examination of whether the PCRA court’s determination is supported by

the record and free of legal error. Commonwealth v. Robinson, 139 A.3d

178, 185 (Pa. 2016). “This Court grants great deference to the findings of the

PCRA court, and we will not disturb those findings merely because the record

could support a contrary holding.” Commonwealth v. Hickman, 799 A.2d

136, 140 (Pa. Super. 2002) (citation omitted). We will not disturb the court’s

findings unless there is no support for them in the certified record.

Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa. Super. 2014).

All PCRA petitions, “including a second or subsequent petition, shall be

filed within one year of the date the judgment becomes final.” 42 Pa.C.S.A.

1 Despite this Court granting the Commonwealth three requests for extension of time, the third extending the due date to July 21, 2020, and stating no further requests would be considered, the Commonwealth’s brief was not filed until September 1, 2010.

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§ 9545(b)(1). 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. at § 9545(b)(3).

Hawkins acknowledges his petition is facially untimely.2 The one-year

time limitation, however, can be overcome if a petitioner alleges and proves

one of the three exceptions set forth in section 9545(b)(1)(i)-(iii)3 of the PCRA,

2 This Court affirmed Hawkins’ judgment of sentence on February 13, 2009, and Hawkins did not file a petition for permission to appeal in the Pennsylvania Supreme Court. His judgment of sentence, therefore, became final on March 16, 2009, when the time for filing such a petition expired. See Pa.R.A.P. 1113(a) (petition for allowance of appeal shall be filed with Prothonotary of Supreme Court within 30 days after entry of order of Superior Court sought to be reviewed). Thus, Hawkins had one year, until March 16, 2010, to file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). The instant petition, filed on May 15, 2019, is over nine years late.

3 The exceptions to the timeliness requirement are:

(i) the failure to raise the claim previously was the result of interference of 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.A. §§ 9545(b)(1)(i), (ii), and (iii).

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and files a petition raising this exception within one year of the date the claim

could have been presented. 42 Pa.C.S.A. § 9545(b)(2).4 See

Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017).

Hawkins claims his petition falls within the newly-discovered facts

exception, 42 Pa.C.S.A. § 9545(b)(1)(ii), which

requires a petitioner to demonstrate he did not know the facts upon which he based his petition and could not have learned those facts earlier by the exercise of due diligence. Due diligence demands that the petitioner take reasonable steps to protect his own interests. A petitioner must explain why he could not have learned the new fact(s) earlier with the exercise of due diligence. This rule is strictly enforced.

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super.

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