J-S78027-13
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DESMOND ROBINSON
Appellant No. 156 EDA 2013
Appeal from the PCRA Order December 17, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013009-2007
BEFORE: SHOGAN, J., OTT, J., and PLATT, J.*
MEMORANDUM BY OTT, J. FILED AUGUST 13, 2014
Desmond Robinson appeals from the order entered on December 17,
2012, 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. §
9541 et seq. Robinson claims the PCRA court erred in denying his petition
without a hearing because he raised a meritorious claim that his guilty plea
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*
Retired Senior Judge assigned to the Superior Court.
J-S78027-13
was unknowing and involuntary. After a thorough review of the submissions
by the parties, relevant law, and the certified record, we affirm.1, 2
Pa.R.A.P. 1925(a) opinion.
On July 31, 2001, a cab driver picked up Robinson and another
man shortly after 3:00 a.m. Robinson and the other man
attempted to rob the driver at gunpoint; the cab driver tried to
speed off in the cab, but was unsuccessful. The cab driver was
shot two times in the back; he later died as a result of these
gunshot wounds. Robinson left his baseball cap in the cab, from
which DNA evidence was later recovered, ultimately leading to
interviewed Robinson and he admitted to planning and
detectives was recorded, in writing and on videotape. The facts
Robinson planned to rob the cab driver at gunpoint. During the
appointment and later withdre
Christopher J. Evarts, Esquire, Bernard L. Siegel, Esquire, and
Barbara McDermott, Esquire. Bernard L. Siegel ultimately
represented Robinson at his guilty plea hearing.
On April 13, 2009, Robinson entered a negotiated guilty plea to
Third Degree Murder (18 Pa.C.S. § 2502(c)), Robbery (18
Pa.C.S. § 3701(a)(1)(i)), Conspiracy (18 Pa.C.S. § 903) and
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1
This matter was previously remanded for counsel to file a Pa.R.A.P.
1925(b) statement of errors complained of on appeal and trial court opinion.
See Commonwealth v. Robinson, ___ A.3d. ___, [156 EDA 2013], (Pa.
Super., February 3, 2014) (unpublished memorandum).
2
On May 27, 2014, this Court also granted Robinson an extension of time,
until July 12, 2014, to file a brief following remand. However, no brief has
been filed.
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907(b)) before this Court in the Philadelphia Court of Common
Pleas.
That same day, Robinson was sentenced to an aggregate term of
imprisonment of thirty (30) to sixty (60) years to run
concurrently with other sentences Robinson was already serving
for unrelated matters. Robinson did not seek to withdraw his
plea or file a direct appeal of his judgment of sentence.
Therefore, his judgment of sentence became final on May 14,
2009.
The docket in this matter reveals that Robinson filed a pro se
Post-
pursuant to 42 Pa.C.S. § 9541 et seq, alleging ineffective
assistance of counsel and that his guilty plea was unlawfully
induced. Lee Mandell, Esquire was appointed to serve as
Counsel filed
a Finley Letter pursuant to Commonwealth v. Finley, 550
PCRA Petition should be dismissed as untimely filed.
On August 4, 2011, Robinson filed a pro se response to PCRA
Finley Letter, wherein alleging that his pro se PCRA
Petition was timely filed pursuant to the Prisoner Mailbox Rule.
(a) acting pro se and (b) incarcerated at the time he or she
seeks to file an appeal, justice requires the appeal be deemed
Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997).
Courts of the Commonwealth may accept any reasonable
verifiable evidence of such deposit or placement of documents in
the prison mailbox. Id
response indicating that he deposited his pro se PCRA Petition
with prison authorities on May 9, 2010, which is within the one-
year filing deadline mandated by the PCRA. On August 12,
2011, Robinson filed a pro se Amended PCRA Petition.
the [PCRA] Court issued a notice of Intent to Dismiss pursuant to
Pa.R.A.P. 907. Robinson filed a response to the Notice of Intent
to Dismiss in the form of a Motion for Reconsideration on
November 18, 2011. The [PCRA] Court, upon further review,
eration and ordered PCRA
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Counsel to submit a response specifically on the issue of the
application of the Prisoner Mailbox Rule as it applied to
Court to this end. On August 10, 2012, PCRA Counsel filed an
pro se PCRA Petition was timely filed.
On November 2, 2012, the Commonwealth filed its Motion to
Robin
Dismiss, the [PCRA] Court issued a Notice of Intent to Dismiss
pursuant to Pa.R.A.P. 907, on November 21, 2012. On
December 17, 2012, the [PCRA] Court issued an Order
as meritless.
On January 10, 2013, PCRA Counsel filed a Notice of Appeal on
January 15, 2013, pursuant to Pa.R.A.P. 1925(b), th[e PCRA]
Court ordered Robinson to file a Concise Statement of Matters
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one (21) days. As of March 8, 2013, when th[e PCRA] Court
filed its prior Opinion in this matter, Robinson had not filed his
1925(b) Statement.[3] Therefore, th[e PCRA] Court concluded
that Robinson had waived all issues on appeal and as a result his
appeal should be quashed.
On February 3, 2014, the Superior Court remanded the matter
to permit Robinson to file a 1925(b) Statement nunc pro tunc
and directed th[e PCRA] Court thereafter to prepare and file its
Pa.R.A.P. 1925(a) opinion. On February 24, 2014, Robinson,
through court appointed counsel, timely filed his 1925(b)
complaints of error on appeal. Essentially, Robinson avers that
th[e PCRA] Court erred in dismissing his PCRA Petition without
an evidentiary hearing, at which Robinson would have been able
to prove that (1) his guilty plea was not knowingly, intelligently,
and voluntarily entered; and (2) Trial Counsel was ineffective for
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3
certified record was complete, leading to further delay in the resolution of
this petition and appeal.
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failing to fully explain the possibility of motioning the Court to
PCRA Court Opinion, 3/25/2014, at 1-4.
We note the standard of review for the instant matter:
[T]his Court's standard of review regarding an order denying a
petition under the PCRA 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 PCRA court's findings will not be
disturbed unless there is no support for the findings in the
certified record. Commonwealth v. Carr, 768 A.2d 1164, 1166
(Pa. Super. 2001).
Commonwealth v. Davis, 86 A.3d 883, 886 (Pa. Super. 2014).
The PCRA court has appropriately noted that this PCRA petition has
been timely filed. Therefore, we will dispense with a recitation and analysis
of the timeliness/jurisdictional requirements.
Robinson has raised two issues under his central claim that the PCRA
court improperly denied him a hearing on his petition. Pursuant to
Pa.R.Crim.P. 907, upon receipt of the PCRA petition:
The judge shall promptly review the petition, any answer by the
attorney for the Commonwealth, and other matters of record
from this review that there are no genuine issues concerning any
material fact and that the defendant is not entitled to post-
conviction collateral relief, and no purpose would be served by
any further proceedings, the judge shall give notice to the
parties of the intention to dismiss the petition and shall state in
the notice the reasons for the dismissal. The defendant may
respond to the proposed dismissal within 20 days of the date of
the notice. The judge thereafter shall order the petition
dismissed, grant leave to file an amended petition of direct that
proceedings continue.
Pa.R.Crim.P. 907(1).
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Accordingly,
[a] PCRA court may decline to hold a hearing if the petitioner's
claim is patently frivolous and is without a trace of support in
either the record or from other evidence. A reviewing court on
appeal must examine each of the issues raised in the PCRA
petition in light of the record in order to determine whether the
PCRA court erred in concluding that there were no genuine
issues of material fact and denying relief without an evidentiary
hearing.
Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001)
(citations omitted).
guilty plea was involuntary because he
was medicated at the time and dozed off during the colloquy. Therefore, he
did not fully understand the nature and consequences of his plea.
The PCRA Court properly noted that this claim was not raised in
connect
claim should have been raised on direct appeal, but was not. Because the
claim was not raised in the first instance, the issue has been waived. See
42 Pa.C.S. § 9544(b) (issue waived if petitioner could have raised it but
failed to do so before trial, at trial, during unitary review on appeal or in a
prior state post-conviction proceeding); Commonwealth v. Steele, 961
A.2d 786, 796 (Pa. 2008). Therefore, we agree with the PCRA Court that
this issue has been waived.
Even if we accepted the issue as having been properly preserved,
Robinson would not be entitled to relief. We have reviewed the notes of
testimony from the guilty plea and Robinson is shown to have been a full
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participant in the proceeding. He provided cogent answers to all questions
put to him as well as allocution. The certified record belies this aspect of
Next, Robinson claims counsel was ineffective for failing to explore the
viability of a suppression motion, seeking to exclude his incriminating
statement made to the police.
The written guilty plea colloquy form, however, specifically addressed
the subject of suppression motions as well as the fact that by pleading guilty
he would be giving up the right to challenge evidence or to appeal a decision
that had denied suppression. See Written Guilty Plea Colloquy, 4/13/2009,
at 2.
Furthermore, the notes of testimony from the guilty plea hearing
demonstrate that Robinson read and understood the written guilty plea
colloquy.
THE COURT: Okay. Now I have in my hand the Written Guilty
Plea Colloquy. Are you familiar with this document?
[ROBINSON]: Yes.
THE COURT: It appears to have your signature on Page 3. It
that your signature there?
[ROBINSON]: Yes.
THE COURT: All right. Now, that signature indicates to me and
anyone else who would read this in the future that you read it,
ed with your
attorney and you signed it because you agree with everything
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[ROBINSON]: Yes.
THE COURT: Is that correct?
[ROBINSON]: Yes, sir.
N.T. Guilty Plea, 4/13/2009, at 10-11.
It is well settled that,
may not assert grounds for withdrawing the plea
that contradict statements made when he pled guilty. Because
Lewis stated at his colloquy that he was satisfied with his
counsel's representation, he is foreclosed from now asserting
that counsel's represent
Commonwealth v. Lewis, 708 A.2d 497, 501 (Pa. Super. 1998) (citation
omitted).
Because the certified record demonstrates Robinson conferred with
trial counsel regarding the written guilty plea colloquy and was satisfied with
Therefore, Robinson is not entitled to relief on this aspect of his claim.
frivolous and there would be no purpose to further proceedings, the PCRA
Court properly dismissed his petition without a hearing.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/13/2014
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