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Commonwealth v. Robinson

Superior Court of Pennsylvania

May 2, 2018

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT E. ROBINSON Appellant

          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: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J., SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J., and DUBOW, J.

          OPINION

          BOWES, J.

         Robert E. Robinson appeals from an order dismissing two PCRA petitions as untimely. Appellant alleges that he is entitled to an evidentiary hearing with respect to the petition filed June 19, 2015, since the PCRA court analyzed the underlying merits of his substantive claim. While we agree that the PCRA court erred, we affirm on the basis that Appellant failed to establish due diligence.

         We previously set forth the facts underlying Appellant's conviction in our order denying his third petition for PCRA relief, which we repeat herein.

On June 25, 1982, Appellant and a cohort were in the process of breaking into a car for the purpose of stealing it when they were confronted by the car's owner, the victim. Appellant shot the victim four times and escaped with his cohort in another stolen vehicle; the victim died. Approximately one week later, Appellant was questioned about the crime, and he ultimately was charged with murder, robbery, criminal conspiracy, and possession of an instrument of crime. On July 1, 1983, Appellant pled guilty to second degree murder and criminal conspiracy. He received a life sentence for the murder conviction and a concurrent sentence of ten-to-twenty years confinement for conspiracy. Appellant asserted on direct appeal that his trial counsel was ineffective and that his guilty plea was involuntary. We affirmed the judgment of sentence on March 1, 1985.

Commonwealth v. Robinson, 2347 EDA 2000 (Pa.Super. 2001) (unpublished memorandum).

         This appeal concerns an order dismissing Appellant's eighth and ninth attempts to secure PCRA relief.[1] The eighth petition submitted that

         Appellant was entitled to relief pursuant to Miller v. Alabama, 567 U.S. 460 (2012). While that petition was pending, Appellant filed another petition, docketed June 19, 2015. The petition contained numerous allegations concerning drug use by his plea counsel, Richard Michaelson, Esquire. The petition alleged that "At the time of trial/guilty plea . . . my counsel suffered from the effects of cocaine abuse. He was ingesting, [c]ocaine, and because of counsel's [c]ocaine addiction, 'his mind was befog[ged], disordered by paranoid thoughts and the belief that he was in control when he was not.'" Pro se PCRA petition, 6/19/15, at 4. The petition alleged that this drug use "impaired his ability to represent [me] in a Constitutionally sufficient manner." Id.

          The petition included sworn affidavits prepared by Appellant and Bruce Quarles, a fellow prisoner, which related the following. Mr. Quarles overheard Appellant complaining about trial counsel. Mr. Quarles informed Appellant that he knew of trial counsel and supplied documentation regarding Attorney Michaelson's purchase of cocaine in the Caribbean Islands during May of 1982, around the time of Appellant's plea. Additionally, Mr. Quarles stated that he knew Attorney Michaelson had been convicted of drug offenses in federal court, and told Appellant "he would bring the transcripts and newspaper articles to the law library and I could make photo copies of the newspaper articles and the transcripts. This is how I obtained the after [d]iscovered [e]vidence on April 28, 2015." Pro se PCRA petition, 6/19/15, at 4-A.

         Appended to the petition were three additional exhibits: a newspaper article dated May 29, 1982, stating that Attorney Michaelson was fired from his job as an Assistant District Attorney in Philadelphia due to an FBI informant alleging Attorney Michaelson had purchased cocaine; a transcript of trial counsel's plea to possession of drugs in the Eastern District of Pennsylvania on April 29, 1994; and, a newspaper story reporting the 1994 conviction. The plea transcript indicates that in 1991 through June 1992, Attorney Michaelson regularly purchased cocaine from a dealer. During the plea hearing, Attorney Michaelson stated that he had been using cocaine since approximately 1979. According to Appellant, his receipt of this statement marked the first time he was aware that trial counsel was using cocaine at a time period relevant to his case, prompting him to file the untimely PCRA petition at issue.

         The PCRA court dismissed the petition on the basis it was untimely, and explained its ruling in its Pa.R.A.P. 1925(a) opinion:

[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 offenses that occurred between 1991 and 1992. [Appellant] cannot reasonably claim that 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 specific case was improper. [Appellant] has failed to demonstrate that any of the exceptions to the limitations of the PCRA apply to his case.

PCRA Court Opinion, 11/16/15, at 4.

         On appeal, a panel of this Court unanimously determined that Appellant was not entitled to relief on his petition seeking to raise a Miller claim. The panel split with respect to the other petition. The majority determined that the PCRA court improperly considered the merits of Appellant's underlying claim in dismissing the PCRA petition, and, as a result, held that a remand for an evidentiary hearing was required to determine whether Appellant properly pled the § 9545(b)(1)(ii) exception. The dissent, written by this author, agreed that the PCRA court applied the wrong inquiry by assessing the merits of the claim in determining the timeliness of the petition, but would have affirmed on the alternative basis that Appellant failed to establish his due diligence. Additionally, the dissenting memorandum opined that the petition did not set forth any facts that could ever entitle him to relief.

         The Commonwealth filed for reargument, asserting that a remand would result in a needless expenditure of time and expense in this and similar cases. We granted en banc review and appointed counsel to represent Appellant's interests. The parties submitted substituted briefs and the matter is ready for our review. Appellant raises the following issue:

Should the PCRA court have held an evidentiary hearing on Appellant's claim regarding trial counsel's drug offenses for purposes of determining whether Appellant met the timeliness exception for newly discovered facts?

Appellant's brief at 3.

         Our standard of review examines "whether the PCRA court's determination is supported by the evidence of record and free of legal error. We grant great deference to the PCRA court's findings, and we will not disturb those findings unless they are unsupported by the certified record." Commonwealth v. Holt, 175 A.3d 1014, 1017 (Pa.Super. 2017) (citation omitted). A PCRA petition must be filed within one year of the date the judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). "This time constraint is jurisdictional in nature, and is not subject to tolling or other equitable considerations." Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017) (citation omitted). The time bar can "only be overcome by satisfaction of one of the three statutory exceptions codified at 42 Pa.C.S. § 9545(b)(1)(i)-(iii)." Id. "Questions regarding the scope of the statutory exceptions to the PCRA's jurisdictional time-bar raise questions of law; accordingly, our standard of review is de novo." Commonwealth v. Chester, 895 A.2d 520, 522 n.1 (Pa. 2006).

         Since Appellant's judgment of sentence became final long ago, Appellant averred that these facts satisfied the second of the three exceptions to the PCRA's one-year time bar. These exceptions are:

(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 ...

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