Commonwealth v. Hipps, 603 WDA 2021

CourtSuperior Court of Pennsylvania
Writing for the CourtOPINION BY BENDER, P.J.E.
Citation274 A.3d 1263
Parties COMMONWEALTH of Pennsylvania, Appellant v. Davaughn HIPPS
Docket Number603 WDA 2021
Decision Date29 April 2022

274 A.3d 1263

COMMONWEALTH of Pennsylvania, Appellant
Davaughn HIPPS

No. 603 WDA 2021

Superior Court of Pennsylvania.

Argued April 5, 2022
Filed: April 29, 2022

Keaton Carr, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.

Corrie A. Woods, Moon Township, for appellee.

Matthew B. Goddard, Moon Township, for appellee.



Appellant, the Commonwealth, appeals from the post-conviction court's May 18, 2021 order granting Davaughn Hipps’ ("Hipps") second, untimely petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541 - 9546, and permitting Hipps to file a new, first PCRA petition on the basis that his initial post-conviction counsel acted ineffectively. After careful review, we reverse.

The facts underlying Hipps’ criminal convictions are not germane to the issues raised by the Commonwealth herein. We need only discuss the procedural history of Hipps’ case, which the PCRA court summarized, as follows:

[Hipps] was charged with two (2) counts of possession with intent to deliver a controlled substance, namely heroin, pursuant to 35 P.S. § 780-113(a)(30) ; one count of possession of a controlled substance, namely heroin, pursuant to 35 P.S. § 780-113(a)(16) [;] and one count of criminal conspiracy pursuant to 18 Pa.C.S.[ ] § 903. The matter proceeded to a non-jury trial before the Honorable Judge Edward Borkowski on October 13, 2016. [Hipps] was found guilty of all counts. On January 26, 2017, [Hipps] was sentenced as follows: at count 1, [Hipps] was sentenced to serve two (2) to four (4) years[’] incarceration in a state correctional institution; at count 4, [Hipps] was sentenced to serve two (2)
274 A.3d 1265
to four (4) years[’] incarceration in a state correctional institution consecutive to count 1; and no further penalty at the remaining counts. Thus, [Hipps’] total sentence was to serve four (4) to eight (8) years in a state correctional institution.

[Hipps] did not file post-sentence motions or a direct appeal. On May 23, 2017, [Hipps] filed a pro se petition for PCRA relief. Judge Borkowski appointed counsel to represent [Hipps] in this PCRA. An amended petition was filed on August 3, 2017[,] requesting that [Hipps’] post-sentence and appellate rights be reinstated. This PCRA [petition] was granted on August 4, 2017. Counsel for [Hipps] filed post-sentence motions, which were denied. Counsel for [Hipps] then filed an appeal to the Superior Court on October 17, 2017.

Ultimately, on April 12, 2019, [Hipps], through counsel, filed a praecipe to discontinue his appeal. On May 20, 2019, [Hipps] filed his first[, counseled] PCRA petition. On June 24, 2019, Judge Borkowski recused himself and this matter was reassigned to the undersigned. After review of [Hipps’] PCRA petition and the Commonwealth's answer thereto, this court issued a notice of [its] intention to dismiss [Hipps’ petition] pursuant to Pa.R.Crim.P. 907(1) on the basis that [Hipps had] failed to sufficiently plead either of the issues raised in his PCRA petition as required by Pa.R.Crim.P. 902(A)(11) and (12). Pursuant to Pa.R.Crim.P. 905(B), this court ordered counsel for [Hipps, Thomas N. Farrell, Esq.,] to file an amended petition. [Attorney Farrell] filed an amended petition on October 10, 2019[,] wherein he raised the following issue: "[Hipps] received newly-discovered evidence that would have dramatically reduced his sentence." (Amended Petition[,] ... 10/10/19, [at] 4). The "newly-discovered evidence" as pled by [Attorney Farrell] was as follows:

Following [Hipps’] conviction, [Hipps] provided police with information that was helpful in solving a homicide. [Hipps] told a third party, family member and that individual provided the information to Detective Steven Hitchings. (See certification). Detective Hitchings then used that information in order to solve a homicide. (See certification). Once [Hipps] provided police with a suspect, the police were able to confirm the suspect through DNA. (See certification).

Therefore, based upon the information provided, [Hipps] asks for a reduction in sentence.

([Id. ] ... [at] 5). On October 15, 2019, the Commonwealth filed an answer. On October 22, 2019, this court issued another notice of [its] intention to dismiss pursuant to Pa.R.Crim.P. 907(1) and stated as follows:

It is evident from [Hipps’] amended petition that his claim of newly[-]discovered evidence is not based upon evidence that was unknown to him at the time of his non-jury trial or otherwise related to the facts underlying his conviction in any manner. As such, [Hipps] failed to plead and prove his claim of newly[-]discovered evidence.

(...Order of Court[, 10/22/19, at 1 (single page)]). On December 19, 2019, this court entered an order dismissing [Hipps’] petition. [Hipps] did not file an appeal to this order.

On May 19, 2020, [Hipps] filed a [pro se ] motion to reinstate [his] appellate rights nunc pro tunc with the Department of
274 A.3d 1266
Court Records. For reasons unknown to the undersigned, [Hipps’] motion was not received by this court [and], thus[,] no action was taken. On January 14, 2021, [Hipps] filed a pro se motion for [PCRA] relief. In said PCRA, [Hipps] asked for his appellate rights to be reinstated. On February 24, 2021, this court appointed current counsel for [Hipps]. On April 1, 2021, counsel for [Hipps] filed an amended petition. On April 5, 2021, the Commonwealth filed an answer.

In [Hipps’] April 1, 2021 amended petition, he asserted that ... [Attorney Farrell's] failure to raise non-frivolous claims[,] and/or raising only frivolous claims[, in Hipps’ first PCRA petition] constitute[d] ineffective assistance of counsel per se . The Commonwealth, in its answer, argued that [Hipps’ present] PCRA [petition] is time-barred and[, because] no exception exists, ... this court is without jurisdiction to take action on the petition. After careful consideration, on May 1[8], 2021, this court granted [Hipps’] petition[,] and stated as follows:

This court finds that the issues raised in [Hipps’] first[,] counseled PCRA petition were frivolous and, consequently, [Hipps] was deprived of any meaningful PCRA review. While this court recognizes that [Hipps] and his second PCRA counsel failed to set forth what issues should have or could have been raised in the first PCRA [petition], this court finds [Hipps] should have the opportunity for meaningful review of potentially meritorious issues with his counsel. This court declines to find that asserting a plainly frivolous claim constitutes ineffective assistance of counsel per se , but rather finds that [Hipps’] first PCRA counsel was ineffective in this instance.

(...Order of Court[, 5/18/21, at 1 (single page)]). The Commonwealth filed an appeal [from] this order. On June 8, 2021, the Commonwealth filed a [ Pa.R.A.P. 1925(b) concise] statement of errors complained of on appeal....

PCRA Court Opinion ("PCO"), 7/26/21, at 1-5 (footnote and unnecessary capitalization omitted). The PCRA court filed its Rule 1925(a) opinion on July 26, 2021.

Herein, the Commonwealth states one issue for our review:

I. Whether the PCRA court erred by failing to conclude that [Hipps’] second PCRA petition was time[-]barred and without exception where the second PCRA petition was filed beyond the PCRA's one[-]year time limit but where, nevertheless, the PCRA court "reinstated nunc pro tunc " [Hipps’] right to file an "initial petition for relief" after the PCRA court summarily concluded that [Hipps’] first PCRA counsel was ineffective in representing [Hipps] without requiring [Hipps’] second PCRA petition to plead and prove all three prongs of an ineffectiveness claim in regards to first PCRA counsel's representation of [Hipps], particularly, where the PCRA court specifically declined to find that first PCRA counsel was ineffective per se in representing [Hipps]?

Commonwealth's Brief at 5 (unnecessary capitalization omitted; emphasis in original).

Preliminarily, we note that this Court's standard of review of a PCRA court order is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Ragan , 592 Pa. 217, 923 A.2d 1169, 1170 (2007).

The Commonwealth first contends that Hipps’ "second PCRA petition was

274 A.3d 1267

untimely filed and [he] failed to prove an exception to the PCRA's time-bar." Commonwealth's Brief at 16. The PCRA time limitations implicate our jurisdiction and may not be altered or disregarded in order to address the merits of a petition. See Commonwealth v. Bennett , 593 Pa. 382, 930 A.2d 1264, 1267 (2007). Under the PCRA, any petition for post-conviction relief, including a second or subsequent one, must be filed...

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