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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                    v.                   :
                                         :
DARNELL ROBINSON,                        :          No. 1337 EDA 2014
                                         :
                         Appellant       :


                  Appeal from the PCRA Order, April 21, 2014,
             in the Court of Common Pleas of Philadelphia County
              Criminal Division at Nos. CP-51-CR-0001783-2009,
             CP-51-CR-0005926-2007, CP-51-CR-0013595-2008,
              CP-51-CR-0013596-2008, CP-51-CR-0015097-2008


BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OTT, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED MARCH 10, 2015

       Appellant, Darnell Robinson, appeals, pro se, the order of the Court of

Common Pleas of Philadelphia County, dismissing his second petition

brought under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546. After careful review, we affirm.

       On June 23, 2009, appellant pled guilty to charges of attempted

murder, four counts of aggravated assault, robbery, four counts of criminal

conspiracy, and four violations of the Uniform Firearms Act, stemming from

four   separate   shooting   incidents   that   occurred   over   a   period   of

approximately two years, between August 2006 and June 2008.                    At

sentencing, appellant completed both a written colloquy and a two-day

verbal colloquy. Appellant was sentenced to 22 to 48 years’ imprisonment.
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        Appellant filed a direct appeal which was subsequently withdrawn.

Thereafter, appellant filed a timely first PCRA petition on October 29, 2009,

in which he raised the ineffectiveness of guilty plea counsel allegedly

resulting in appellant entering an unknowing, unintelligent, and involuntary

plea.    Following an evidentiary hearing, the PCRA court dismissed the

petition on June 20, 2011.     This court affirmed the PCRA court, and our

supreme court denied review. Commonwealth v. Robinson, 46 A.3d 805

(Pa.Super. 2012) (unpublished memorandum), appeal denied, 48 A.3d

1248 (Pa. 2012).

        In this second PCRA petition filed on July 23, 2013, appellant

reiterates his ineffectiveness claims against trial counsel and layers these

claims by alleging his appellate counsel was ineffective. On March 25, 2014,

the PCRA court filed a Pa.R.Crim.P. 907 notice advising appellant of its

intention to dismiss appellant’s petition as untimely. On April 15, 2014, the

PCRA court dismissed appellant’s second PCRA petition.           This appeal

followed.

        Our standard of review for an order denying post-conviction relief is

whether the record supports the PCRA court’s determination, and whether

the PCRA court’s determination is free of legal error.   Commonwealth v.

Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the

certified record. Id.



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      A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). This time

requirement is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of the petition.    Commonwealth v.

Taylor, 933 A.2d 1035, 1038 (Pa.Super. 2007), appeal denied, 951 A.2d

1163 (Pa. 2008).

      On October 29, 2009, appellant withdrew his direct appeal; therefore,

appellant’s judgment of sentence became final on that date.             See

Commonwealth v. Conway, 706 A.2d 1243, 1244 (Pa.Super. 1997)

(judgment of sentence becomes final when direct appeal is discontinued).

As appellant’s second PCRA petition was not filed until approximately four

years after his judgment of sentence became final, it is patently untimely.

See 42 Pa.C.S.A. § 9545(b)(1). A second or subsequent PCRA petition must

be filed within one year of the date the judgment becomes final unless the

petition alleges, and petitioner proves, that an exception to the time for

filing the petition is met. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      Appellant attempts to invoke the “after-discovered facts exception”

under 42 Pa.C.S.A. § 9545(b)(1)(ii) on the grounds that appellate counsel

“abandoned” him by unreasonably withdrawing the direct appeal and filing a

PCRA petition.     In order to invoke an after-discovered facts timeliness

exception, petitioner must establish that (1) the facts upon which the claim

was predicated were unknown, and (2) the facts could not have been



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ascertained by the exercise of due diligence. Commonwealth v. Bennett,

930 A.2d 1264, 1272 (Pa. 2007).         Any petition invoking a timeliness

exception must be filed within 60 days of the date the claim could have been

presented. 42 Pa.C.S.A. § 9545(b)(2).

     The PCRA court addressed appellant’s claim as follows:

                  [Appellant] was notified on several occasions
           that appellate counsel was challenging trial counsel’s
           effectiveness through a PCRA petition, which is the
           appropriate route, rather than through a direct
           appeal. Appellate counsel’s October 28, 2009 and
           July 24, 2012 letters, as well as the evidentiary
           hearing at which [appellant] testified, each provided
           separate and effective notification of the allegedly
           “unknown” fact that his counsel was pursuing a PCRA
           petition rather than a direct appeal. Nevertheless,
           [appellant] failed to plead the alleged “unknown
           facts” within 60 days, and instead filed much later on
           July 23, 2013.

                 [Appellant] has not specified any other
           purported failures of appellate counsel that were
           allegedly unknown to him, nor has he explained how
           he attempted, through the exercise of due diligence,
           to obtain any other information which was kept from
           him.

                 In addition to failing to plead the “unknown
           facts” exception within 60 days of the date the claim
           could have been presented, [appellant] has not set
           forth a valid claim that appellate counsel
           “abandoned” him. . . . [Appellant’s] claim that
           appellate counsel’s withdrawal of the direct appeal in
           favor of a PCRA prejudiced [appellant] and
           constituted “abandonment” is unfounded because a
           PCRA is the only appropriate means for pursuing
           claims of counsel ineffectiveness on appeal. The
           record shows that appellate counsel did not abandon
           [appellant], but rather timely filed an ineffectiveness
           claim through the only appropriate vehicle, a PCRA


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            petition, and communicated with [appellant] before
            and after that petition was filed. [Appellant] had a
            full review of that claim, including an evidentiary
            hearing where he participated. [Appellant] failed to
            meet the timeliness requirements and failed to show
            that an exception to those requirements applies in
            his case. [Appellant] knew his appellate counsel was
            pursuing his claims and failed to complain about
            appellate counsel’s conduct until long after the
            expiration of the 60-day period during which a
            timeliness exception may be pled.

PCRA court opinion, 6/19/14 at 6-7 (citations omitted).

      Based on the above, we conclude appellant has not shown that he is

entitled to relief under Section 9545(b)(1)(ii).

      Appellant raises several other claims alleging ineffectiveness of

appellate counsel.     Here, appellant’s second PCRA petition is facially

untimely and does not fall under an exception to the time requirements of

the PCRA.    We note appellate counsel filed a timely first PCRA petition

alleging ineffective assistance of trial counsel. Following a hearing, the PCRA

court found trial counsel was not ineffective and appellant’s guilty plea was

knowing, intelligent, and voluntary.    Once these claims against appellant’s

trial counsel were decided against appellant, his layered claims of alleged

ineffectiveness against appellate counsel by extension had no merit.      See

Commonwealth v. Burkett, 5 A.3d 1260, 1270 (Pa.Super. 2010) (“when a

prior collateral proceeding has determined that a petitioner has not suffered

prejudice due to trial counsel’s actions, a layered claim of ineffectiveness




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must    necessarily   fail   since   the    underlying   issue   of   trial   counsel’s

ineffectiveness has previously been determined against the petitioner”).

       Accordingly, we affirm the order of the PCRA court.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/10/2015




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