J-S01008-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
              v.                           :
                                           :
NICHOLE HAWKINS,                           :
                                           :
                   Appellant               :           No. 172 EDA 2014

                 Appeal from the PCRA Order December 18, 2013
              in the Court of Common Pleas of Philadelphia County,
                  Criminal Division, No. CP-51-CR-0331852-1994

BEFORE: GANTMAN, P.J., MUNDY and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                     FILED FEBRUARY 03, 2016

        Nichole Hawkins (“Hawkins”) appeals from the Order dismissing her

Petition for relief pursuant to the Post Conviction Relief Act (“PCRA”). See

42 Pa.C.S.A. §§ 9541-9546. We affirm.

        In 1995, Hawkins and her co-conspirator were convicted of murder of

the second degree, criminal conspiracy, possessing an instrument of crime

and five counts of robbery after committing an armed robbery at a massage

parlor.1 The trial court sentenced Hawkins to life in prison for the murder

conviction.    Hawkins was also sentenced to concurrent terms of 2½ to 5

years in prison for both the conspiracy and possessing an instrument of

crime convictions, and concurrent terms of 10 to 20 years in prison for each

robbery conviction.




1
    18 Pa.C.S.A. §§ 2502(b), 903, 907, 3701.
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        This Court affirmed the judgment of sentence. See Commonwealth

v. Hawkins, 718 A.2d 342 (Pa. Super. 1998) (unpublished memorandum).

Hawkins did not file a petition for allowance of appeal with the Supreme

Court of Pennsylvania.

        Hawkins, pro se, filed the instant PCRA Petition in October 2010. In

July 2012, Hawkins filed an amended PCRA Petition.             The PCRA court

appointed Hawkins PCRA counsel, who filed a counseled, amended PCRA

Petition in November 2013 and a supplement to the amended Petition in July

2013.     The PCRA court issued a Notice of Intent to Dismiss without a

hearing. On December 18, 2013, the PCRA court dismissed the Petition as

untimely. Hawkins filed a timely Notice of Appeal.2

        On appeal, Hawkins raises the following questions for our review:

        I. Whether the PCRA [c]ourt erred by determining that
        [Hawkins’s] PCRA Petition was untimely because [Hawkins’s]
        sentence of mandatory life without parole for her conviction for
        felony murder [] is “cruel and unusual punishment” under Article
        1, §§ 1, 9, and 13 of the Pennsylvania Constitution and “cruel
        and unusual punishment” under the Eighth and Fourteenth
        Amendments to the U.S. Constitution pursuant to the reasons
        set forth in Miller v. Alabama, 132 S. Ct. 2455 (2012)[,] and
        because [Hawkins] was not the shooter, she was an impaired
        person who was twenty-three years old when the decedent was
        shot and the age limitation of 18 years to qualify for relief under
        Miller is arbitrary and capricious.

        II. Whether Miller v. Alabama applies retroactively to
        [Hawkins,] who has exhausted her appeal rights and is
        proceeding under the [PCRA] because: (1) Miller’s companion
        case, Jackson v. Hobbs, 132 S. Ct. 548 (2011)[,] was decided

2
  There is a protracted procedural history following Hawkins’s Notice of
Appeal in January 2014, which is not relevant to this appeal.


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      on collateral review and (2) cases from both strands of
      precedent relied upon by the Court in Miller have been applied
      retroactively.

Brief for Appellant at 2.

      We review an order dismissing a petition under the PCRA in the
      light most favorable to the prevailing party at the PCRA level.
      This review is limited to the findings of the PCRA court and the
      evidence of record. We will not disturb a PCRA court’s ruling if it
      is supported by evidence of record and is free of legal error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      Initially, under the PCRA, any PCRA petition “shall be filed within one

year of the date the judgment becomes final[.]” 42 Pa.C.S.A. § 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. § 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, Hawkins’s judgment of sentence became final in 1998, when the

time for filing a petition for allowance of appeal with the Pennsylvania

Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3). Because Hawkins

did not file the instant PCRA Petition until 2010, her Petition is facially

untimely.



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     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 PCRA petition invoking one of

these exceptions “shall be filed within 60 days of the date the claim could

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

     Here, Hawkins cites the Supreme Court’s recent decision in Miller,

supra, and invokes the newly recognized constitutional right exception at 42

Pa.C.S.A. § 9545(b)(1)(iii).   Brief for Appellant at 13-23.   In Miller, the

United States Supreme Court held that sentencing schemes that mandate

life in prison without parole for defendants who committed their crimes while

under the age of eighteen violate the Eighth Amendment’s prohibition on

“cruel and unusual punishments.”    Miller, 132 S. Ct. at 2460.    The Court

reasoned that in light of a juvenile’s diminished culpability and heightened

capacity for change, mandatory juvenile sentencing schemes pose too great

a risk of disproportionate punishment, in contravention of the Eighth

Amendment. Id. at 2469.

     Hawkins avers that the Miller rationale should be extended to include

her sentence of life without the possibility of parole, even though she was




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twenty-three years old at the time of the murder.3 Brief for Appellant at 13-

16.   Further, Hawkins claims that Miller applies retroactively because

Jackson, supra, was decided on collateral review, and because cases from

both lines of precedent relied upon in Miller have been applied retroactively.

Id. at 23-31.

      Hawkins filed the instant PCRA Petition within sixty days of the date

the Miller decision was filed, as required by the PCRA.    See 42 Pa.C.S.A.

§ 9545(b)(2). However, the Supreme Court in Miller set forth a bright-line

rule deeming mandatory sentences of life without parole unconstitutional for

defendants under the age of eighteen. Because Hawkins was twenty-three

years old at the time of the murder, Miller does not apply.4     Accordingly,

Hawkins has failed to plead and prove the exception provided in 42

Pa.C.S.A. § 9545(b)(1)(iii) to overcome the untimeliness of her Petition.

      Order affirmed.



3
  Hawkins also cites this Court’s decisions in Commonwealth v. Devon
Knox, 50 A.3d 732 (Pa. Super. 2012), and Commonwealth v. Jovon
Knox, 50 A.3d 749 (Pa. Super. 2012), and argues that her life without
parole sentence is unconstitutional because she was convicted of murder of
the second degree, rather than murder of the first degree, and because she
was not the shooter. In both cases, this Court held that mandatory life
without parole sentences for juveniles convicted of murder of the second
degree are unconstitutional. Devon Knox, 50 A.3d at 745; Jovon Knox,
50 A.3d at 769.
4
  We note that the United States Supreme Court in Montgomery v.
Louisiana, 2016 WL 280758, *5-*16 (2016), determined that Miller
applied retroactively on collateral review. However, because Hawkins was
not eighteen years old at the time of murder, Miller does not apply.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/3/2016




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