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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 De cember 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 p etition

without a hearing because he raised a meritorious claim that his guilty plea

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* Retired Senior Judge assigned to the Superior Court.J-S78027- 13

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was unknowing and involuntary. After a thorough rev iew of the submissions

by the parties, relevant law, and the certified recor d, we affirm. 1 , 2

We adopt the procedural history and facts from the PCR A Court’s

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 m an attempted to rob the driver at gunpoint; the cab dri ver 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 ca b, from which DNA evidence was later recovered, ultimately le ading to Robinson’s arrest and prosecution. Homicide detectives the n interviewed Robinson and he admitted to planning and participating in the robbery. Robinson’s statement to the detectives was recorded, in writing and on videotape. The facts presented at Robinson’s guilty plea hearing confirm tha t Robinson planned to rob the cab driver at gunpoint. During the course of Robinson’s prosecution, several counsel accepted appointment and later withdre w as Robinson’s counsel, including Christopher J. Evarts, Esquire, Bernard L. Siegel, E squire, and Barbara McDermott, Esquire. Bernard L. Siegel ultim ately represented Robinson at his guilty plea hearing.

On April 13, 2009, Robinson entered a negotiated gui lty 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. § 90 3) and Possession of an Instrument of Crime (“PIC” 18 Pa.C.S. §

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1 This matter was previously remanded for counsel to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal an d 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 rema nd. However, no brief has been filed.J-S78027- 13

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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 te rm of imprisonment of thirty (30) to sixty (60) years to run concurrently with other sentences Robinson was already ser ving for unrelated matters. Robinson did not seek to withd raw his plea or file a direct appeal of his judgment of sente nce. Therefore, his judgment of sentence became final on May 14, 2009.

The docket in this matter reveals that Robinson filed a pro se Post- Conviction Relief Act (“PCRA”) Petition on June 8, 201 0, pursuant to 42 Pa.C.S. § 9541 et seq , alleging ineffective assistance of counsel and that his guilty plea was unlawfu lly induced. Lee Mandell, Esquire was appointed to serve as Robinson’s PCRA Counsel. On July 12, 2011, PCRA Counsel filed

a Finley

Letter pursuant to Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. Ct. 1988), wherein stating that Robinson’s PCRA Petition should be dismissed as untimely filed.

On August 4, 2011, Robinson filed a pro se response to PCRA Counsel’s Finley

Letter, wherein alleging that his pro se PCRA Petition was timely filed pursuant to the Prisoner Mai lbox Rule. The Prisoner Mailbox Rule provides that “when the appe llant is (a) acting pro se and (b) incarcerated at the time he or she seeks to file an appeal, justice requires the appeal be deemed “filed” on the date that the appellant deposits the app eal with prison authorities and/or places it in the prison mailbo x.” 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 docum ents in the prison mailbox. Id . Robinson attached a “Cash Slip” to his response indicating that he deposited his pro se PCRA Petition with prison authorities on May 9, 2010, which is with in the oneyear filing deadline mandated by the PCRA. On Augu st 12, 2011, Robinson filed a pro se Amended PCRA Petition.

On October 7, 2011, upon review of Robinson’s PCRA Pet ition, the [PCRA] Court issued a notice of Intent to Dismiss p ursuant 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 o n November 18, 2011. The [PCRA] Court, upon further r eview, granted Robinson’s Motion for Reconsid eration and ordered PCRAJ-S78027- 13

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Counsel to submit a response specifically on the issue of th e application of the Prisoner Mailbox Rule as it applied to Robinson’s PCRA Petition. Six continuances were granted by the Court to this end. On August 10, 2012, PCRA Counsel filed an Amended PCRA Petition on Robinson’s behalf, wherein st ating that Robinson’s pro se PCRA Petition was timely filed.

On November 2, 2012, the Commonwealth filed its Moti on to Dismiss Robinson’s PCRA Petition. Upon independent rev iew of Robin son’s PCRA Petition and the Commonwealth’s Motion to 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 dismissing Robinson’s PCRA Petition as meritless.

On January 10, 2013, PCRA Counsel filed a Notice of A ppeal on Robinson’s behalf in the Superior Court of Pennsylvani a. 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 Complained of on Appeal (“1925(b) Statement”) within twenty

one (21) days. As of March 8, 2013, when th[e PCRA] Court filed its prior Opinion in this matter, Robinson had n ot 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 th e 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, R obinson, through court appointed counsel, timely filed his 1925( b) Statement pursuant to the Superior Court’s Order. Un like its usual custom, the [PCRA] Court will not recite Robinson ’s complaints of error on appeal. Essentially, Robinson a vers 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 in effective for

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3 We wish to note our displeasure with PCRA Counsel’s fai lure to ensure the certified record was complete, leading to further delay in the resolution of this petition and appeal.J-S78027- 13

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failing to fully explain the possibility of motionin g the Court to suppress Robinson’s statement to homicide detectives.
PCRA Court Opinion, 3/25/2014, at 1- 4.

We note the standard of review for the instant matt er:

[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 PCR A 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 tha t 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 an swer by the attorney for the Commonwealth, and other matters of record relating to the defendant’s claim(s). If the judge i s satisfied from this review that there are no genuine issues concer ning any material fact and that the defendant is not entitled to postconviction collateral relief, and no purpose would be se rved by any further proceedings, the judge shall give notice t o the parties of the intention to dismiss the petition and sh all state in the notice the reasons for the dismissal. The defendan t may respond to the proposed dismissal within 20 days of the d ate of the notice. The judge thereafter shall order the pet ition dismissed, grant leave to file an amended petition of direct that proceedings continue.
Pa.R.Crim.P. 907(1).J-S78027- 13

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Accordingly,

[a] PCRA court may decline to hold a hearing if the p etitioner's claim is patently frivolous and is without a trace of sup port in either the record or from other evidence. A reviewin g court on appeal must examine each of the issues raised in the PCR A petition in light of the record in order to determi ne whether the PCRA court erred in concluding that there were no genu ine issues of material fact and denying relief without an e videntiary hearing.

Commonwealth v. Jordan , 772 A.2d 1011, 1014 (Pa. Super. 2001)

(citations omitted).

Robinson’s first claim is that his guilty plea was involuntary because he

was medicated at the time and dozed off during the col loquy. Therefore, he

did not fully understand the nature and consequences of his plea.

The PCRA Court properly noted that this claim was no t raised in

connect ion with any allegation of counsel’s ineffectiveness. Th erefore, the

claim should have been raised on direct appeal, but wa s not. Because the

claim was not raised in the first instance, the issue has b een 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 unita ry 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 r eviewed the notes of

testimony from the guilty plea and Robinson is shown t o have been a fullJ-S78027- 13

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participant in the proceeding. He provided cogent answ ers to all questions

put to him as well as allocution. The certified record belies this aspect of

Robinson’s claim.

Next, Robinson claims counsel was ineffective for failin g to explore the

viability of a suppression motion, seeking to exclude h is incriminating

statement made to the police.

The written guilty plea colloquy form, however, specif ically 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 p lea hearing

demonstrate that Robinson read and understood the wri tten 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 t o me and anyone else who would read this in the future that yo u read it, you understood it, you discussed it with your attorney and you’re satisfied with the contents of it and you’re satisfi ed with your attorney and you signed it because you agree with eve rything that’s in it; is that correct?J-S78027- 13

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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,

“[a] defendant may not assert grounds for withdrawing the plea that contradict statements made when he pled guilty. B ecause Lewis stated at his colloquy that he was satisfied with h is counsel's representation, he is foreclosed from now asserti ng that counsel's represent ation was ineffective.”

Commonwealth v. Lewis , 708 A.2d 497, 501 (Pa. Super. 1998) (citation

omitted).

Because the certified record demonstrates Robinson confe rred with

trial counsel regarding the written guilty plea colloq uy and was satisfied with

counsel’s representation, he is foreclosed from asserting t he contrary now.

Therefore, Robinson is not entitled to relief on this aspect of his claim.

Because the certified record confirms Robinson’s claims wer e patently

frivolous and there would be no purpose to further pr oceedings, the PCRA

Court properly dismissed his petition without a hearing

.

Order affirmed.J-S78027- 13

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/13/2014