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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
SAVOY S. ROBINSON :
:
Appellant : No. 2281 EDA 2017
Appeal from the PCRA Order June 23, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0807931-2004
BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.
MEMORANDUM BY LAZARUS, J.: FILED JANUARY 23, 2018
Savoy S. Robinson appeals from the order, entered in the Court of
Common Pleas of Philadelphia County, denying his petition filed pursuant to
the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 (PCRA). Upon
careful review, we affirm.
On April 13, 2005, Robinson was sentenced to life imprisonment, plus
2½ to 5 years, after a jury found him guilty of first-degree murder and
possession of an instrument of crime in relation to the shooting death of a
fellow halfway house resident in July 2004. Robinson’s judgment of sentence
was affirmed by this Court, and our Supreme Court denied allowance of appeal
on May 15, 2007. Robinson subsequently filed four PCRA petitions, which
were either dismissed or withdrawn. Robinson filed the instant petition, his
fifth, on April 5, 2017, in which he invoked the newly-discovered fact and
newly-recognized constitutional right exceptions to the PCRA timeliness
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requirements. Specifically, Robinson asserted that on March 31, 2017, he
discovered that the trial court and the Commonwealth had “encroached on the
powers of the Legislative Branch by rewriting and changing the provisions of
42 Pa.C.S.A. § 9711[ s]entencing procedure for murder of the first degree[,
t]hus[] arbitrarily creating an unconstitutional sentencing statute[.]”
Amended PCRA Petition, 5/15/17, at 5. By order dated June 23, 2017, the
PCRA court dismissed Robinson’s petition as untimely. This timely appeal
follows, in which Robinson asserts that the PCRA court erred in dismissing his
petition as untimely and failing to find that he had satisfied one of the
exceptions to the time bar.
This court’s standard of reviewing an order dismissing a PCRA petition
is whether the determination of the PCRA court is supported by the record
evidence and is free of legal error. Commonwealth v. Hart, 911 A.2d 939,
941 (Pa. Super. 2006) (citation omitted). 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).
Generally, a PCRA petition, including a second or subsequent petition,
must be filed within one year of the date the judgment of sentence is final
unless the petition alleges, and the petitioner proves, that an exception to the
time for filing the petition1 is met, and that the claim was raised within 60
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1 The statutory exceptions to the time bar are as follows:
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days of the date on which it became available. 42 Pa.C.S.A. § 9545(b) and
(c). The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Lewis, 63 A.3d 1274, 1280–81 (Pa. Super. 2013),
quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006) (“[I]f a
PCRA petition is untimely, neither this Court nor the [PCRA] court has
jurisdiction over the petition. Without jurisdiction, we simply do not have the
legal authority to address the substantive claims.”).
Here, Robinson’s judgment of sentence became final on or about August
15, 2007, upon the expiration of the ninety-day period for filing a writ of
certiorari with the U.S. Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3);
U.S.Sup.Ct.R. 13. Thus, his April 2017 petition, filed nearly ten years after
his judgment of sentence became final, was patently untimely. Unless
Robinson pled and proved one of the timeliness exceptions under 42 Pa.C.S.A.
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(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
claim in violation of the Constitution or laws of this Commonwealth
or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown to
the petitioner and could not have been ascertained by the exercise
of due diligence; or
(iii) the right asserted is a constitutional right that was recognized
by the Supreme Court of the United States or the Supreme Court
of Pennsylvania after the time period provided in this section and
has been held by that court to apply retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
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§ 9545(b)(1), the PCRA court was without jurisdiction to consider the merits
of the petition.
Robinson invokes both the newly-discovered facts and newly-recognized
constitutional right exceptions to the PCRA time bar. Essentially, Robinson
asserts that the trial court and Commonwealth encroached on the province of
the jury by not allowing it to consider imposing the death penalty in violation
of 42 Pa.C.S.A. § 9711, which requires that the jury determine whether a
defendant convicted of first-degree murder shall be imprisoned for life or
sentenced to death. Robinson asserts that he discovered this fact on March
31, 2017, and that he did so with due diligence pursuant to Commonwealth
v. Burton, 121 A.3d 1063 (Pa. Super. 2015), in which we held that, when
assessing due diligence under the PCRA, the presumption of access to
information available in the public domain does not apply to pro se petitioners.
Robinson is entitled to no relief.
Robinson claims that the trial court and Commonwealth “rewrote” and
“changed” the provisions of section 9711 at the time of his trial. However, a
statute in existence at the time of Robinson’s trial is not a “new fact” within
the meaning of the PCRA. See Commonwealth v. Watts, 23 A.3d 980 (Pa.
2011) (subsequent court decision not “new fact” for purposes of PCRA
timeliness exception). Moreover, Robinson is unable to explain why he was
unable to “discover” section 9711 until March 31, 2017. Instead, he places
mistaken reliance on Burton, in which a pro se PCRA petitioner discovered an
exculpatory confession made by a co-defendant more than 15 years after his
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trial, at a time when the petitioner was no longer represented by counsel.
Conversely, here, Robinson was represented by counsel at the time of trial, at
which time he could have discovered the existence of section 9711.
Because Robinson failed to plead and prove any exception to the time
bar, the PCRA court did not err in dismissing his patently untimely petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/23/18
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