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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ROY ROBINSON :
:
Appellant : No. 1875 EDA 2017
Appeal from the PCRA Order May 25, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0837291-1988
BEFORE: PANELLA, J., MURRAY, J., and STEVENS, P.J.E.
MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 26, 2018
Roy Robinson appeals pro se from the order dismissing his petition for
writ of habeas corpus as an untimely Post Conviction Relief Act (“PCRA”)
petition. We conclude the PCRA court properly treated the petition as a PCRA
petition, with the exception of Robinson’s claim that the Department of
Corrections (“DOC”) does not possess a copy of his judgment of sentence. As
the court noted, that claim is frivolous. And we conclude the remaining claims
in the petition are untimely under the PCRA. We therefore affirm the order.
A jury convicted Robinson on one count of first degree murder for
shooting and killing Christopher Washington. The court sentenced Robinson
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Former Justice specially assigned to the Superior Court.
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to life in prison. This Court affirmed Robinson’s judgment of sentence on May
9, 1991. He did not file an appeal to the Supreme Court of Pennsylvania.
In the following years, Robinson became a prolific filer of collateral
petitions. In 2011, this Court affirmed the dismissal of Robinson’s sixth PCRA
petition as untimely. See Commonwealth v. Robinson, 12 A.3d 477 (Pa.
Super. 2011).
Perhaps sensing a theme in the recent dismissals of his PCRA petitions,
Robinson switched gears. On December 3, 2014, Robinson filed a petition for
writ of habeas corpus. This Court affirmed the dismissal of the petition as an
untimely PCRA petition. See Commonwealth v. Robinson, No. 3366 EDA
2005, at 2-7 (Pa. Super., filed September 7, 2016) (unpublished
memorandum).
Currently before us is Robinson’s next petition for writ of habeas corpus,
which he filed on June 14, 2016. The court dismissed the entire petition by
order entered May 25, 2017. This timely appeal followed.
Robinson’s first issue on appeal arises from the portion of his petition
the court treated as an untimely PCRA petition.1 “On appeal from the denial
of PCRA relief, our standard and scope of review is limited to determining
whether the PCRA court’s findings are supported by the record and without
legal error.” Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013)
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1On appeal, Robinson has not challenged the court’s classification of these
portions of his petition as claims under the PCRA.
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(citation omitted). On questions of law, our scope of review is de novo. See
id.
Before we can reach the merits of Robinson’s first arguments, we must
determine whether the PCRA grants jurisdiction to entertain his claim.
Generally, the PCRA grants jurisdiction to hear a collateral attack on a
conviction only if a petition is filed in the year after the judgment of sentence
becomes final. See Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012).
The judgment of sentence is final when the petitioner’s direct appeal rights
have been exhausted. See id., at 17. After the expiration of the one-year
period, a petitioner must plead and prove one of three enumerated exceptions
to the time-bar to establish jurisdiction under the PCRA. See id.
A panel of this Court found Robinson’s sixth PCRA petition, filed February
11, 2009, untimely. See Robinson, 12 A.3d at 481. Thus, unless Robinson
can establish an exception to the timeliness requirement, the court had no
jurisdiction to entertain those portions of his petition it determined were
subject to the dictates of the PCRA.
First, Robinson argues that Johnson v. United States, 135 S.Ct. 2551
(2015), recognized a new Constitutional right and therefore qualifies for the
newly-recognized right exception set forth in 42 Pa.C.S.A. § 9545(b)(1)(iii).
He further argues Welch v. United States, 136 S.Ct. 1257 (2016)
announced that Johnson would be applied retroactively.
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However, Robinson fails to establish that Johnson has anything to do
with his case. There, the Supreme Court ruled that the federal Armed Career
Criminal Act’s residual clause was so vague as to violate the Constitutional
guarantee of due process. See 136 S.Ct. at 2557.
Robinson concedes the Armed Career Criminal Act was not a factor in
either in his conviction or his sentence. See Appellant’s Brief, at 12. He merely
argues Pennsylvania’s definition of first-degree murder is likewise too vague
to comply with due process requirements. See id., at 14. While it is remotely
possible there is a colorable due process argument within Robinson’s brief, he
fails to identify any case that has recognized his argument as valid.
This is not sufficient to establish the § 9545(b)(1)(iii) timeliness
exception. Subsection (iii) requires that either the Supreme Court of the
United States or the Supreme Court of Pennsylvania recognize the right at
issue before the petition is filed and that it has been held to apply
retroactively. To allow a petitioner to argue his asserted right will be
recognized through pending litigation would allow this exception to swallow
the timeliness rule whole.
Robinson also blends arguments supporting his second issue on appeal.
One of these arguments that 18 Pa.C.S.A. § 1102 is void ab initio as it was
allegedly never properly enacted is a claim covered by the PCRA. See
Commonwealth v. Woods, 179 A.3d 37, 43 (Pa.Super. 2017). And the claim
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does not automatically provide an exception to the PCRA’s time bar provisions.
See id.
Thus, the PCRA court properly ruled that those portions of Robinson’s
petition subject to the PCRA are untimely. Robinson’s first argument on appeal
merits no relief.
In his next three arguments, Robinson claims he is serving a sentence
that the trial court never imposed. See, e.g., Appellant’s Brief, at 27 (“The
core of Appellant’s argument is that his detention … is illegal because the trial
court never imposed a sentence authorized at 18 Pa.C.S. § 1102(a)”); see
also Appellant’s Brief, at 38 (“There is no presumption of guilt or sentence
found in record at hearing on April 30, 1990”). If there is truth to this claim,
it is arguable that it may be raised in a petition for writ of habeas corpus. See
Joseph v. Glunt, 96 A.3d 365, 368-369 (Pa. Super. 2014).
However, there is no truth to this claim. Robinson’s brief contains a copy
of the sentencing order,2 imposing a life sentence, entered after the court
denied Robinson’s post-sentence motions. The same document shows that a
life sentence had previously been imposed on October 17, 1989. And the
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2 Clearly, Robinson’s attachment of the document to his brief does not make
this document a part of the certified record. See Roth Cash Register
Company, Inc. v. Micro Systems, Inc., 868 A.2d 1222, 1223 (Pa. Super.
2005). However, this document is in the certified record as exhibit “N” to
Robinson’s amended petition filed October 17, 2016. The transcript for the
April 30, 1990 sentencing hearing is attached to the same amended petition
as exhibit “M”.
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transcript from the April 30, 1990 hearing on Robinson’s post-sentence
motions reveals the court imposing a life sentence at page 29.
Clearly, the court imposed a sentence of life in prison. Just as clearly,
the mere fact that the DOC does not currently possess a copy of the order
imposing sentence does not render Robinson’s detention illegal. See id., at
370.
Finally, Robinson contends that Glunt itself violates the prohibition of
ex post facto punishment. However, Robinson misreads Glunt. Robinson
argues that Glunt’s construction of 42 Pa.C.S.A. § 9764 relieved the DOC of
a duty previously imposed upon it. See Appellant’s Brief, at 44. This is not
true. “The language and structure of section 9764, viewed in context, make
clear that the statute pertains not to the DOC’s authority to detain a duly-
sentenced prisoner, but, rather, sets forth the procedures and prerogatives
associated with the transfer of an inmate from county to state detention.”
Glunt, 96 A.30 at 371. Thus, Glunt merely recognized that § 9764 did not
create “a cause of action for a prisoner based upon the failure to provide a
copy [of a sentencing order] to the DOC.” Id., at 370.
Robinson contends such a cause of action existed prior to the enactment
of § 9764. In support of this novel argument, he cites to 37 Pa.Code §§ 91.3
and 95.222. However, both of these regulations are classified as
administrative. For the same reasons § 9764 is clearly not intended to create
a remedy for prisoners, we conclude that these two regulations are similarly
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not intended to create enforceable rights in prisoners. The regulations are
merely procedures established for the efficient administration of prisoners
supervised by the DOC. Robinson’s claim fails.
As none of Robinson’s arguments on appeal merit relief, we affirm the
order dismissing his petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/26/18
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