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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DARNELL ROBINSON, : No. 1337 EDA 2014
:
Appellant :
Appeal from the PCRA Order, April 21, 2014,
in the Court of Common Pleas of Philadelphia County
Criminal Division at Nos. CP-51-CR-0001783-2009,
CP-51-CR-0005926-2007, CP-51-CR-0013595-2008,
CP-51-CR-0013596-2008, CP-51-CR-0015097-2008
BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OTT, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 10, 2015
Appellant, Darnell Robinson, appeals, pro se, the order of the Court of
Common Pleas of Philadelphia County, dismissing his second petition
brought under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546. After careful review, we affirm.
On June 23, 2009, appellant pled guilty to charges of attempted
murder, four counts of aggravated assault, robbery, four counts of criminal
conspiracy, and four violations of the Uniform Firearms Act, stemming from
four separate shooting incidents that occurred over a period of
approximately two years, between August 2006 and June 2008. At
sentencing, appellant completed both a written colloquy and a two-day
verbal colloquy. Appellant was sentenced to 22 to 48 years’ imprisonment.
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Appellant filed a direct appeal which was subsequently withdrawn.
Thereafter, appellant filed a timely first PCRA petition on October 29, 2009,
in which he raised the ineffectiveness of guilty plea counsel allegedly
resulting in appellant entering an unknowing, unintelligent, and involuntary
plea. Following an evidentiary hearing, the PCRA court dismissed the
petition on June 20, 2011. This court affirmed the PCRA court, and our
supreme court denied review. Commonwealth v. Robinson, 46 A.3d 805
(Pa.Super. 2012) (unpublished memorandum), appeal denied, 48 A.3d
1248 (Pa. 2012).
In this second PCRA petition filed on July 23, 2013, appellant
reiterates his ineffectiveness claims against trial counsel and layers these
claims by alleging his appellate counsel was ineffective. On March 25, 2014,
the PCRA court filed a Pa.R.Crim.P. 907 notice advising appellant of its
intention to dismiss appellant’s petition as untimely. On April 15, 2014, the
PCRA court dismissed appellant’s second PCRA petition. This appeal
followed.
Our standard of review for an order denying post-conviction relief is
whether the record supports the PCRA court’s determination, and whether
the PCRA court’s determination is free of legal error. Commonwealth v.
Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings
will not be disturbed unless there is no support for the findings in the
certified record. Id.
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A PCRA petition must be filed within one year of the date that the
judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). This time
requirement is mandatory and jurisdictional in nature, and the court may not
ignore it in order to reach the merits of the petition. Commonwealth v.
Taylor, 933 A.2d 1035, 1038 (Pa.Super. 2007), appeal denied, 951 A.2d
1163 (Pa. 2008).
On October 29, 2009, appellant withdrew his direct appeal; therefore,
appellant’s judgment of sentence became final on that date. See
Commonwealth v. Conway, 706 A.2d 1243, 1244 (Pa.Super. 1997)
(judgment of sentence becomes final when direct appeal is discontinued).
As appellant’s second PCRA petition was not filed until approximately four
years after his judgment of sentence became final, it is patently untimely.
See 42 Pa.C.S.A. § 9545(b)(1). A second or subsequent PCRA petition must
be filed within one year of the date the judgment becomes final unless the
petition alleges, and petitioner proves, that an exception to the time for
filing the petition is met. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
Appellant attempts to invoke the “after-discovered facts exception”
under 42 Pa.C.S.A. § 9545(b)(1)(ii) on the grounds that appellate counsel
“abandoned” him by unreasonably withdrawing the direct appeal and filing a
PCRA petition. In order to invoke an after-discovered facts timeliness
exception, petitioner must establish that (1) the facts upon which the claim
was predicated were unknown, and (2) the facts could not have been
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ascertained by the exercise of due diligence. Commonwealth v. Bennett,
930 A.2d 1264, 1272 (Pa. 2007). Any petition invoking a timeliness
exception must be filed within 60 days of the date the claim could have been
presented. 42 Pa.C.S.A. § 9545(b)(2).
The PCRA court addressed appellant’s claim as follows:
[Appellant] was notified on several occasions
that appellate counsel was challenging trial counsel’s
effectiveness through a PCRA petition, which is the
appropriate route, rather than through a direct
appeal. Appellate counsel’s October 28, 2009 and
July 24, 2012 letters, as well as the evidentiary
hearing at which [appellant] testified, each provided
separate and effective notification of the allegedly
“unknown” fact that his counsel was pursuing a PCRA
petition rather than a direct appeal. Nevertheless,
[appellant] failed to plead the alleged “unknown
facts” within 60 days, and instead filed much later on
July 23, 2013.
[Appellant] has not specified any other
purported failures of appellate counsel that were
allegedly unknown to him, nor has he explained how
he attempted, through the exercise of due diligence,
to obtain any other information which was kept from
him.
In addition to failing to plead the “unknown
facts” exception within 60 days of the date the claim
could have been presented, [appellant] has not set
forth a valid claim that appellate counsel
“abandoned” him. . . . [Appellant’s] claim that
appellate counsel’s withdrawal of the direct appeal in
favor of a PCRA prejudiced [appellant] and
constituted “abandonment” is unfounded because a
PCRA is the only appropriate means for pursuing
claims of counsel ineffectiveness on appeal. The
record shows that appellate counsel did not abandon
[appellant], but rather timely filed an ineffectiveness
claim through the only appropriate vehicle, a PCRA
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petition, and communicated with [appellant] before
and after that petition was filed. [Appellant] had a
full review of that claim, including an evidentiary
hearing where he participated. [Appellant] failed to
meet the timeliness requirements and failed to show
that an exception to those requirements applies in
his case. [Appellant] knew his appellate counsel was
pursuing his claims and failed to complain about
appellate counsel’s conduct until long after the
expiration of the 60-day period during which a
timeliness exception may be pled.
PCRA court opinion, 6/19/14 at 6-7 (citations omitted).
Based on the above, we conclude appellant has not shown that he is
entitled to relief under Section 9545(b)(1)(ii).
Appellant raises several other claims alleging ineffectiveness of
appellate counsel. Here, appellant’s second PCRA petition is facially
untimely and does not fall under an exception to the time requirements of
the PCRA. We note appellate counsel filed a timely first PCRA petition
alleging ineffective assistance of trial counsel. Following a hearing, the PCRA
court found trial counsel was not ineffective and appellant’s guilty plea was
knowing, intelligent, and voluntary. Once these claims against appellant’s
trial counsel were decided against appellant, his layered claims of alleged
ineffectiveness against appellate counsel by extension had no merit. See
Commonwealth v. Burkett, 5 A.3d 1260, 1270 (Pa.Super. 2010) (“when a
prior collateral proceeding has determined that a petitioner has not suffered
prejudice due to trial counsel’s actions, a layered claim of ineffectiveness
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must necessarily fail since the underlying issue of trial counsel’s
ineffectiveness has previously been determined against the petitioner”).
Accordingly, we affirm the order of the PCRA court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2015
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