J-S71040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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       In an unpublished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 filed Mar. 1 1985) (unpublished memorandum).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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