Commonwealth v. Robinson, 715 CAP

• Decision Date: 20 June 2016
• Docket Number: No. 715 CAP,715 CAP
• Citation: 139 A.3d 178
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Antyane ROBINSON, Appellant.
• Court: Pennsylvania Supreme Court

139 A.3d 178

COMMONWEALTH of Pennsylvania, Appellee

v.Antyane ROBINSON, Appellant.

No. 715 CAP

Supreme Court of Pennsylvania.

Submitted March 30, 2016.

Decided June 20, 2016.

Enid Wolfe Harris, Esq., for Antyane Robinson.

Matthew Peter Smith, Esq., Cumberland County District Attorney's Office, Charles John Volkert Jr., Esq., Amy Zapp, Esq., PA Office of Attorney General, for Commonwealth of Pennsylvania.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.

OPINION

Justice BAER

.

This is an appeal from an order of the Court of Common Pleas of Cumberland County (“PCRA court”), dismissing as untimely a second petition filed by Antyane Robinson (“Appellant”) pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541

–9546. Acknowledging that current Pennsylvania jurisprudence renders his petition time-barred, Appellant requests that we create an equitable exception to the PCRA's timeliness requirements. For the reasons set forth herein, we decline Appellant's invitation and affirm the PCRA court's dismissal of his petition as untimely filed.

The record establishes that nearly twenty years ago, on June 29, 1996, Appellant went to the apartment of his former girlfriend, Tara Hodge, and found that Hodge had a male guest, Rashawn Bass, who was taking a shower. An argument ensued, during which Appellant shot Hodge three times, leaving her unconscious on the floor. Appellant thereafter proceeded to the bathroom where he shot Bass. Hodge regained consciousness and eventually identified Appellant as the shooter. Following a jury trial, Appellant was convicted of the first degree murder of Bass, the attempted criminal homicide of Hodge, and related offenses. During the penalty phase, the jury found that the aggravating circumstances outweighed the mitigating circumstances and returned a verdict of death.

Appellant thereafter filed a direct appeal in this Court, raising six claims of trial court error.¹ On November 24, 1998, we rejected Appellant's contentions and affirmed his judgment of sentence. Commonwealth v. Robinson, 554 Pa. 293, 721 A.2d 344 (1998)

. The United States Supreme Court denied certiorari on January 10, 2000. Robinson v. Pennsylvania, 528 U.S. 1082, 120 S.Ct. 804, 145 L.Ed.2d 677 (2000). Accordingly, for purposes of the PCRA, Appellant's judgment became final on that date. See 42 Pa.C.S. § 9545(b)(3) (providing that “[f]or purposes of this subchapter, a judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review”).

On October 16, 2000, within one year of the denial of certiorari, Appellant timely filed his first PCRA petition, raising twelve issues.² See 42 Pa.C.S. § 9545(b)(1) (providing generally that “[a]ny petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final ...”). The trial court conducted an evidentiary hearing on Appellant's petition and, on April 22, 2002, denied relief. This Court affirmed the denial of post-conviction relief on March 12, 2003, holding that five issues were not cognizable as they had been previously litigated on direct appeal and the remaining issues did not merit relief. Commonwealth v. Robinson, 583 Pa. 358, 877 A.2d 433 (2005)

( “Robinson II ”).³

On September 30, 2013, more than thirteen years after his judgment became final, Appellant filed the instant PCRA petition in the Court of Common Pleas of Cumberland County, raising seven issues. Therein, Appellant contended that counsel who represented him during the litigation of his first PCRA petition (“PCRA counsel”) was ineffective for omitting enumerated meritorious issues and for failing to develop adequately issues actually presented in that petition.⁴ Appellant further alleged that he was entitled to relief because of the cumulative prejudicial effect of the errors that were made in his case.

Notably, regardless of the obvious facial untimeliness of the petition, Appellant did not invoke any of the exceptions to the one-year time restriction contained in the PCRA. See 42 Pa.C.S. § 9545(b)(1)(i)–(iii)

(providing exceptions to the one-year time restriction where the petition alleges and the petitioner proves that: the failure to raise the claim previously was the result of interference by government officials; the facts upon which the claim is predicated were unknown and could not have been ascertained by the exercise of due diligence; or the right asserted is a constitutional right that was recognized by the United States Supreme Court or this Court after the time period provided in this section and has been held to apply retroactively). Further, Appellant acknowledged the well-settled proposition that couching post-conviction issues in terms of ineffectiveness cannot “save” an untimely filed PCRA petition that does not fall into any of the exceptions to the PCRA's jurisdictional time bar. See Commonwealth v. Gamboa–Taylor, 562 Pa. 70, 753 A.2d 780, 785 (2000)

(holding that an allegation that PCRA counsel was ineffective for failing to present available claims does not excuse compliance with the timeliness requirements of the PCRA).

Rather than asserting an exception to the timeliness requirement, Appellant asked the court to adopt a new procedure whereby it would review untimely PCRA petitions that challenge the effectiveness of PCRA counsel. He relied on recent United States Supreme Court case law, discussed infra, in which the High Court made an equitable determination that ineffective assistance of trial counsel claims, which collateral counsel failed to raise in the initial state post-conviction proceeding, could be examined in a federal habeas corpus proceeding if post-conviction counsel in the initial state collateral proceeding was either absent or ineffective. Appellant argued that, regardless of the untimeliness of a PCRA petition, Pennsylvania state courts should likewise review waived claims of trial counsel ineffectiveness in serial post-conviction proceedings where the petitioner alleges that PCRA counsel was ineffective.

In response, the Commonwealth filed a motion to dismiss Appellant's petition as untimely filed, noting that it was filed more than thirteen years after his judgment became final. It contended that the PCRA time-bar is jurisdictional in nature, Petitioner failed to assert any exception to the timeliness requirement, and, thus, the trial court lacked jurisdiction to address the merits of the petition.

The PCRA court agreed with the Commonwealth and declined to grant Appellant the requested relief, holding that it is not the role of the court to set policy for the Commonwealth by rewriting the PCRA. Moreover, the trial court held, the federal case law cited by Appellant did not require states to alter their post-conviction procedures, and, if any change in PCRA practices was warranted, that change should be effectuated by the General Assembly or our appellate courts. Because Appellant filed his PCRA petition more than one year after his judgment of sentence became final and did not assert that an exception to the PCRA time-bar applied, the PCRA court held that the petition was untimely filed. Accordingly, the court refused to address the merits of Appellant's petition and granted the Commonwealth's motion to dismiss.⁵

As he did below, Appellant now asks this Court to adopt an equitable exception to the PCRA's one-year filing restriction where, as in the instant case, a subsequent and facially untimely PCRA petition challenges the performance of PCRA counsel. Appellant's argument begins with the acknowledgement of his ruled-based right to counsel in a first post-conviction collateral proceeding. See Pa.R.Crim.P. 904

(providing that the trial court shall appoint counsel to represent a petitioner in his first petition for post-conviction collateral relief). He posits that the right to post-conviction counsel encompasses the right to effective post-conviction counsel. See Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 699–700 (1998) (holding that “[i]t is axiomatic that the right to counsel includes the concomitant right to effective assistance of counsel”). Appellant continues that, in order to obtain a remedy for a violation of his right to effective post-conviction counsel, there must a forum where he can enforce the right by challenging PCRA counsel's performance. He further contends that, if his PCRA petition is deemed untimely filed, he falls into a “gap in this Court's jurisprudence” because he has a right to effective assistance of PCRA counsel, but has no procedural mechanism by which to enforce that right. Brief for Appellant at 10.

Appellant asserts that this Court has recognized that this paradox exists, but has been unable to reach a consensus on a proper solution. See Commonwealth v. Ligons, 601 Pa. 103, 971 A.2d 1125, 1140 (2009)

(plurality) (acknowledging the difficulty a petitioner faces in enforcing his right to effective PCRA counsel considering that it would be virtually impossible to file a serial petition raising PCRA counsel's ineffectiveness in a timely manner before the one-year statutory filing period expired); see also

Commonwealth v. Holmes, 621 Pa. 595, 79 A.3d 562, 584 (2013) (noting that “this Court has struggled with the question of how to enforce the ‘enforceable’ right to effective PCRA counsel within the strictures of the PCRA, as the statute was amended in 1995”).⁶ Appellant concludes that this case presents the Court with a vehicle by which to resolve the issue by amending our procedure for reviewing claims challenging the performance of post-conviction counsel.

Appellant urges the Court to follow the lead of the United States Supreme Court in Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012)

, and Trevino v. Thaler, ––– U.S. ––––, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013). In those...