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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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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
____________________________________________


3

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?

        [ROBINSON]: Yes.

        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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      [ROBINSON]: Yes.

      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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