Com. v. Robinson, D.

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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 Super., February 3, 2014) (unpublished memorandum). 2 On May 27, 2014, this Court also granted Robinson an extension of time, until July 12, 2014, to file a brief following remand.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 - 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 ____________________________________________

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?

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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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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