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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ROBERT E. ROBINSON
Appellant No. 3515 EDA 2015
Appeal from the PCRA Order October 27, 2015
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): CP-51-CR-0718101-1982
BEFORE: BOWES, PANELLA, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MARCH 30, 2017
Appellant, Robert E. Robinson, appeals pro se from the order denying
his serial petition for post-conviction relief filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. Appellant claims
he is entitled to relief based on his recent discovery of his trial counsel’s
substance abuse issues and ineffective assistance, as well as sentencing
relief based on Miller v. Alabama, 132 S. Ct. 2455 (2012), and
Montgomery v. Louisiana, 136 S. Ct. 718 (2016). We affirm in part,
vacate in part, and remand for further proceedings.
A summary of the pertinent facts and procedural history follows.
Appellant was eighteen-years-old when he committed the offenses giving
rise to the underlying conviction. On July 1, 1983, Appellant pleaded guilty
*
Former Justice specially assigned to the Superior Court.
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to second-degree murder and criminal conspiracy. On August 22, 1983, the
trial court sentenced him to life imprisonment for murder and a concurrent
period of ten to twenty years of imprisonment for conspiracy. Appellant did
not file a post-sentence motion seeking to withdraw his guilty plea.
Appellant filed a timely appeal to this Court. In an unpublished
memorandum filed on March 1, 1985, we concluded that Appellant’s failure
to file a motion to withdraw his plea before the trial court waived his right to
challenge the plea on direct appeal. See Commonwealth v. Robinson,
2384 PHL 1983 (Pa. Super. filed Mar. 1 1985) (unpublished memorandum).
Between 1986 and 2007, Appellant filed numerous petitions for post-
conviction relief, which were dismissed as either lacking in merit or being
untimely. In 2010, Appellant filed his seventh PCRA petition, in which he
claimed that he discovered new evidence in his school records of his
borderline intelligence. He asserted that this mental deficiency, along with
bad advice from the trial court and/or trial counsel regarding his eligibility
for parole from a life sentence, caused him to enter an invalid plea. In an
unpublished memorandum filed on June 4, 2013, this Court concluded that
Appellant’s seventh petition was untimely and that he failed to establish any
exception to the PCRA’s time bar. Commonwealth v. Robinson, 1485 EDA
2012 (Pa. Super. filed June 4, 2013) (unpublished memorandum). On
December 4, 2013, our Supreme Court denied Appellant’s petition for
allowance of appeal. Commonwealth v. Robinson, 81 A.3d 77 (Pa. 2013).
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Meanwhile, on August 21, 2012, Appellant filed his eighth PCRA petition in
which he claim he was entitled to relief pursuant to the United States
Supreme Court’s decision in Miller.
While Appellant’s eighth petition was pending in the PCRA court,
Appellant filed another PCRA petition on June 19, 2015. Appellant asserted
that he possessed newly-discovered evidence that his trial counsel had a
substance abuse issue in the early 1980s, and that counsel’s addiction
caused Appellant to enter an invalid plea. Appellant further raised a claim of
governmental interference with the presentation of his assertion regarding
counsel’s drug abuse, suggesting that the Commonwealth was aware of
counsel’s drug issues and withheld the information from him.
On September 22, 2015, the PCRA court issued a Pa.R.Crim.P. 907
notice of intent to dismiss Appellant’s eighth and ninth petitions without a
hearing. Appellant filed a response on September 30, 2015. After reviewing
the response, the court denied the petitions on October 27, 2015. This
timely appeal follows.1
Appellant raises the following issues:
Whether the PCRA court erred in denying [Appellant’s
PCRA] petition as untimely filed when [Appellant]
established that his newly-discovered evidence claims were
within the exception of the plain language under 42
Pa.C.S.A. § 9545(b)(1)(ii) and [§] 9545(b)(2)?
1
Appellant complied with the PCRA court’s order to submit a Pa.R.A.P.
1925(b) statement, and the court filed a responsive opinion.
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Whether [Appellant] is entitled to a new trial, or remand
for an evidentiary hearing based upon the personal
“Presentence Hearing and Sentencing Transcripts of [trial
counsel], the attorney admitted he [] had a drug problem
[with] cocaine and he [] has been ingesting cocaine for
fourteen (14) years from 1979 to 1990?
Whether the District Attorney’s Office failure to disclose
exculpatory evidence that their former [colleague, trial
counsel,] has a drug problem [with] cocaine and has been
ingesting cocaine from 1970 [sic] to 1990, until [trial
counsel] was suspended and had to [resign] from the
District Attorney’s Office in 1982, to [Appellant], violates
the prosecutor’s obligation under the Fourteenth
Amendment’s Due Process Clause?
Whether it is cruel and unusual punishment to impose a
mandatory sentence of life without parole, on [Appellant]
who was a “minor” of 18 years of age, and who is
classified of those “adolescents” as defined the class of
developing adolescents under Pennsylvania law, violates
the equal protection of the laws. In [Miller], the U.S.
Supreme Court held [] that the mandatory imposition of
life without parole sentences violates the Eighth
Amendment’s prohibition on cruel and unusual
punishment[, a] claim now held to be retroactive by the
U.S. Supreme Court in [Montgomery] . . . requiring a
hearing for resentencing under [the PCRA].
Appellant’s Brief at vi (excess capitalization omitted).
This Court’s standard of review regarding an order dismissing 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. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). 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). Moreover, a PCRA court may decline to hold a
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hearing on the petition if the “petitioner’s claim is patently frivolous and
lacks a trace of support in either the record or from other evidence.”
Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001).
Because this is an appeal from Appellant’s eighth and ninth petitions
for post-conviction relief, we note that his petitions must meet a more
stringent standard. “A second or any subsequent post-conviction request for
relief will not be entertained unless a strong prima facie showing is offered
to demonstrate that a miscarriage of justice may have occurred.”
Commonwealth v. Burkhardt, 833 A.2d 233, 236 (Pa. Super. 2003) (en
banc) (citations and quotation marks omitted). “A petitioner makes a prima
facie showing if he demonstrates that either the proceedings which resulted
in his conviction were so unfair that a miscarriage of justice occurred which
no civilized society could tolerate, or that he was innocent of the crimes for
which he was charged.” Id. (citations and quotation marks omitted).
The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).
Generally, a PCRA petition, including a second or subsequent petition, must
be filed within one year of the date the judgment is final unless the petition
alleges, and the petitioner proves, that an exception to the time for filing the
petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii), is met. 2 See
2
The exceptions to the timeliness requirement are:
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42 Pa.C.S § 9545(a), (b). A petition invoking one of these statutory
exceptions must “be filed within 60 days of the date the claims could have
been presented.” See Hernandez, 79 A.3d at 651-52 (citation omitted);
see also 42 Pa.C.S. § 9545(b)(2). Finally, exceptions to the PCRA’s time
bar must be pleaded in the petition, “and may not be raised for the first time
on appeal.” Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super.
2007) (citations omitted).
Appellant filed his ninth petition in June 2015 seeking relief from a
judgment of sentence that became final over thirty years ago. Therefore,
that petition was facially untimely unless he has satisfied his burden of
pleading and proving that one of the enumerated exceptions applies. See
Hernandez, 79 A.3d at 651-52.
(i) the failure to raise the claim previously was the result
of interference of 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. § 9545(b)(1)(i)-(iii).
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As to his June 2015 petition, Appellant claims that he timely filed it
within sixty days of receiving information from a fellow prisoner about trial
counsel’s drug problem. Appellant attached as exhibits several supporting
documents, including his affidavit in which he explains how and when the
fellow prisoner gave him the information, copies of newspaper articles
regarding trial counsel’s criminal conduct, and a 2011 letter from trial
counsel—in which counsel continued to opine that Appellant was eligible for
parole. Additionally, Appellant attached a copy of trial counsel’s 1994
arraignment and a transcript of the April 29, 1994 plea hearing at which
counsel pleaded guilty to unlawful possession of cocaine in the United States
District Court for the Eastern District of Pennsylvania.
When considering a PCRA’s petitioner’s claim that he has established
an exception to the PCRA’s time bar under Section 9545(b)(1)(ii), the
petitioner must establish only that the facts upon which the claims are
predicated were unknown to him, and that he could not have ascertained the
facts earlier despite the exercise of due diligence. Commonwealth v.
Bennett, 930 A.2d 1264, 1270-72 (Pa. 2007). The determination of
timeliness does not require a merits analysis.3 See id.; see also
3
To obtain relief based upon an “after-discovered” evidence claim, a PCRA
petitioner “must demonstrate that the evidence: (1) could not have been
obtained prior to the conclusion of the trial by exercise of due diligence; (2)
is not merely corroborative or cumulative; (3) will not be used solely to
impeach the credibility of a witness; and (4) would likely result in a different
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Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008);
Commonwealth v. Brown, 141 A.3d 491, 500 (Pa. Super. 2016).
Compare 42 Pa.C.S. § 9545(b)(1)(ii) with 42 Pa.C.S. § 9543(a)(2)(vi).
In its Pa.R.A.P. 1925(a) opinion, the PCRA court concluded that
Appellant’s claim did not constitute newly-discovered evidence:
[Appellant] also claims that he is entitled to a new trial
due to “after-discovered” evidence. Specifically,
[Appellant] argues that his trial attorney had a substance
abuse issue in the early 1980’s [sic] that prevented
counsel from effectively representing him. In support of
this claim, [Appellant] cited a portion of [a] 1982
newspaper article, and a portion of a 1994 U.S. District
Court guilty plea transcript, wherein trial counsel pled
guilty to drug trafficking.
[Appellant’s] claim does not constitute after-discovered
evidence, and his argument is not convincing. Trial
counsel represented [Appellant] in 1983. Counsel pled
guilty to drug trafficking offense that occurred between
1991 and 1992. [Appellant] cannot reasonably claim that
the trial counsel’s subsequent legal problems impacted his
decision to plead guilty a decade earlier. Aside from
allegations contained in an article, [Appellant] has not
provided any evidence to suggest that counsel’s
representation as it related to [Appellant’s] case was
improper. [Appellant] has failed to demonstrate that any
of the exceptions to the time limitations of the PCRA apply
to his case.
PCRA Ct. Op., 11/16/15, at 4.
In reaching this conclusion, the PCRA court “appear[s] to conflate the
newly-discovered fact exception with an after-discovered evidence claim.”
verdict if a new trial were granted.” Commonwealth v. Pagan, 950 A.2d
270, 292 (Pa. 2008) (citations omitted).
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See Brown, 141 A.3d at 500. The PCRA court, without first determining
whether Appellant exercised due diligence in discovering the new evidence,
found the claim unconvincing as a basis for withdrawing his plea. Thus, we
vacate the PCRA court’s order insofar as it relates to Appellant’s newly-
discovered evidence claim, and remand for an evidentiary hearing to
determine whether Appellant has pled and proved the applicability of the
newly-discovered fact exception. See Brown, 141 A.3d at 500. To the
extent Appellant’s third issue impacts the decision on Appellant’s first two
issues, Appellant may proffer any additional evidence to support his claim
upon remand.
In his final issue, Appellant asserts that the PCRA court erred in
denying him post-conviction relief based upon the United States Supreme
Court’s recent opinions in Miller, and Montgomery.4 As acknowledged by
Appellant, the high court in Miller held that a statute requiring a mandatory
life sentence without possibility of parole for a juvenile convicted of first or
second-degree murder violates the Eighth Amendment’s prohibition against
cruel and unusual punishment. Furthermore, in Montgomery, the high
court concluded that Miller applied retroactively. Our review of the record
in this case, however, supports the PCRA court’s conclusion that this federal
4
Appellant filed his 2012 PCRA petition while his appeal of the dismissal of
his 2010 petition was still pending. See Commonwealth v. Lark, 746 A.2d
585 (Pa. 2000). However, because the PCRA court did not dismiss the 2012
petition and subsequently denied relief, we will consider Appellant’s reliance
on Miller and Montgomery as exceptions to the PCRA time bar.
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precedent is inapplicable to Appellant because he was not a juvenile at the
time he committed the murder. See PCRA Ct. Op. at 4. Moreover,
Pennsylvania precedent has rejected Appellant’s equal protection arguments
regarding Miller’s application. See, e.g., Commonwealth v. Cintora, 69
A.3d 759 (Pa. Super. 2013). Thus we affirm that portion of the order
denying Appellant post-conviction relief on this claim.
Order affirmed in part and vacated in part. Case remanded for
proceedings consistent with this memorandum. Jurisdiction relinquished.
Judge Panella joins the memorandum.
Judge Bowes files a concurring and dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/30/2017
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