Com. v. Robinson, S.

• Court: Superior Court of Pennsylvania
• Decided: January 23, 2018
• Docket: 2281 EDA 2017
• Status: Unpublished

Opinion

J-S79024-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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were either dismissed or withdrawn.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 J-S79024-17

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.

(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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