Com. v. Robinson, T.

• Court: Superior Court of Pennsylvania
• Decided: March 24, 2022
• Docket: 1339 EDA 2021
• Status: Unpublished

Opinion

J-S06010-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : THOMAS ROBINSON : : Appellant : No. 1339 EDA 2021

Appeal from the PCRA Order Entered May 28, 2021, in the Court of Common Pleas of Philadelphia County, Criminal Division at No(s): CP-51-CR-0005071-2012.

BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY KUNSELMAN, J.: FILED MARCH 24, 2022

Thomas Robinson appeals pro se from the order denying his second

petition pursuant to the Post Conviction Relief Act (“PCRA”) as untimely filed.

42 Pa.C.S.A. §§ 9541-46. We affirm.

The pertinent facts and procedural history are as follows: On September

16, 2014, a jury convicted Robinson of second-degree murder and related

charges after he and several others, including Terrell Toson, confronted the

victim outside a bar. Thereafter, the trial court imposed an aggregate term

of life in prison. Following the denial of his post-sentence motions, Robinson

appealed to this Court. On April 26, 2016, we affirmed Robinson’s judgment

of sentence, and our Supreme Court denied his petition for allowance of appeal

on September 13, 2016. Commonwealth v. Robinson, 145 A.3d 793 (Pa. J-S06010-22

Super. 2016) (non-precedential decision), appeal denied, 157 A.3d 481 (Pa.

2016).

On September 22, 2017, Robinson filed a timely pro se PCRA petition,

and the PCRA court appointed counsel. On March 15, 2018, PCRA counsel

filed a motion to withdraw and a “no-merit” letter pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On April 20, 2018, the

PCRA court issued a Pa.R.A.P. 907 notice of its intent to dismiss Robinson’s

PCRA petition without a hearing. Robinson did not file a response. By order

entered June 14, 2018, the PCRA court denied Robinson’s petition. He did not

file an appeal.

On October 7, 2020, Robinson filed the pro se PCRA petition at issue,

his second. The Commonwealth filed a motion to dismiss the petition as

untimely filled. On April 9, 2021, the PCRA court issued Rule 907 notice of its

intent to dismiss Robinson’s second petition. Robinson filed a response. By

order entered May 28, 2021, PCRA court dismissed Robinson’s latest PCRA

petition because it was untimely filed, and he failed to establish any time-bar

exception. This appeal followed. Both Robinson and the PCRA court have

complied with Pa.R.A.P. 1925.

Robinson raises the following three issues:

1. Did the [PCRA] court abuse its discretion when it dismissed the new evidence PCRA petition as being untimely filed and not meeting the exception set forth to the time-bar in 42 Pa.C.S.A. § 9545(b)(1)(ii); and (b)(2).

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2. Did the [PCRA] court [err] when it failed to recognize the Brady v. Maryland, [373 U.S. 83 (1963),] due process violation, when the Commonwealth failed to reveal the leniency promise made [to Toson] that did not result in Toson’s open burglary offenses adding no added prison time to his guilty plea to third degree murder.

3. Was the leniency promise made to Toson that added no prison time to his sentence, the same effect as the burglary cases (5) dismissed, for purposes of sentencing impact upon Toson concerning prison time that Toson must serve?

Robinson’s Brief at 4 (excess capitalization and emphasis omitted).

In his first issue, Robinson challenges the PCRA court’s conclusion that

his second PCRA petition was untimely filed, and that he failed to establish a

time-bar exception. The timeliness of a post-conviction petition is

jurisdictional. Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super.

2013). Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

becomes final unless the petition alleges, and the petitioner proves, that an

exception to the time for filing the petition is met.

The three narrow statutory exceptions to the one-year time bar are as

follows: “(1) interference by government officials in the presentation of the

claim; (2) newly discovered facts; and (3) an after-recognized constitutional

right.” Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa. Super. 2012)

(citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii)). Here, because Robinson’s underlying

claim arose prior to December 24, 2017, he was required to file his PCRA

petition invoking one of these statutory exceptions within 60 days of the date

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the claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2) (repealed).1

In addition, exceptions to the PCRA’s time bar must be pled 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); see also Pa.R.A.P. 302(a) (providing

that issues not raised before the lower court are waived and cannot be raised

for the first time on appeal).

Finally, if a PCRA petition is untimely and the petitioner has not pled and

proven an exception “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.” Commonwealth v.

Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007) (citation omitted).

Here, Robinson’s judgment of sentence became final on December 12,

2016, ninety days after our Supreme Court denied his petition for allowance

of appeal, and the time for filing a writ of certiorari to the United States

Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct. Rule

13. Therefore, Robinson had until December 12, 2017 to file a timely petition.

Because Robinson filed his second PCRA petition in 2020, it is untimely unless

he has satisfied his burden of pleading and proving that one of the enumerated

exceptions applies. See Hernandez, supra.

Robinson has failed to plead and prove an exception to the PCRA’s time

bar. At Robinson’s trial, Toson testified against him, in return for Toson’s plea ____________________________________________

1 The current statutory subsection extends the period to one year.

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to third-degree murder. In this PCRA petition, Robinson claims he met the

newly discovered fact exception based on the actual plea deal the

Commonwealth made with Toson. Robinson maintains that the prosecutor

withheld from the jury the fact that Toson’s plea deal encompassed not only

the murder and other charges he faced with Robinson involving this incident,

but also five unrelated burglary charges. According to Robinson, as soon as

he was able to critique the criminal case history of Toson, and determine that

Toson received hidden leniency for his unrelated burglary charges, Robinson

filed this PCRA petition. See Robinson’s Brief at 10.

As this Court has previously summarized:

The newly-discovered fact exception has two components, which must be alleged and proved. Namely, the petitioner must establish that: 1) the facts upon which the claim was predicated were unknown and 2) could not have been ascertained by the exercise of due diligence. If the petitioner alleges and proves these two components, then the PCRA Court has jurisdiction over the claim under this subsection.

Commonwealth v. Brown, 141 A.3d 491, 500 (Pa. Super. 2016) (citation

omitted).

Here, the PCRA court found no merit to Robinson’s claim because it was

refuted by the record. The court explained:

[T]he trial record establishes that the alleged “new fact” upon which the instant claim is predicated, that is, that Toson’s plea agreement included the resolution of his five burglary charges, was disclosed to the jury and known to [Robinson] at the time of trial in 2014. Therefore, the record refutes [Robinson’s] claim that the newly-discovered facts exception to the PCRA time-bar applies to his claim.

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Accordingly, the record establishes that [Robinson’s] Second Petition is time-barred.

PCRA Court Opinion, 7/26/21, at 8-9 (citations and footnotes omitted).

Our review of the record supports the PCRA court’s conclusions.

Initially, when testifying for the Commonwealth, Toson not only acknowledged

that he had already pled guilty to the third-degree murder and related charges

in return for a sentence of 20 to 40 years of imprisonment, but that the

Commonwealth also included five unrelated counts of burglary in his plea

agreement. See N.T., 9/9/14, at 209.

Moreover, the prosecutor introduced the plea agreement into the record

and discussed its terms with Robinson. Id. at 210-11. This agreement,

introduced as an exhibit by the Commonwealth, included the following:

“[Toson] will enter pleas of guilty to one count of 3rd Degree Murder, in violation of 18 Pa.C.S.A. §2502, one count of Robbery, in violation of 18 Pa.C.S.A. §370 . . . one count of Criminal Conspiracy, in violation of 18 Pa.C.S.A. §903 . . . and five (5) counts of Burglary, in violation of 18 Pa.C.S.A. §3501.”

See PCRA Court Opinion, 7/26/21, at 7-8 (citing Commonwealth’s Exhibit C-

43) (emphasis in original).

Finally, on cross-examination, defense counsel questioned Toson

extensively about the fact that his unrelated burglary charges were included

in the plea agreement. See N.T., 9/9/14, at 223-25. Indeed, at one point in

his cross-examination of Toson, defense counsel stated that “we’ve essentially

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discussed over and over again the fact that this deal included five burglaries[,]

and Toson answered affirmatively. N.T., 9/10/14, at 107-08.

Given the above, it is clear from the record that Robinson knew of the

purported “newly-discovered fact” at the time of his trial in 2014. Thus, the

PCRA court correctly determined that he could not meet the newly-discovered

fact exception to the PCRA’s time bar. As such, we lack jurisdiction to address

Robinson’s remaining issues. Derrickson, supra.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/24/2022

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