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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 21⁄2 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 Super. 1998) (unpublished memorandum).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