Com. v. Robinson, W. ( 2018 )


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  • J-S29010-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    WILLIAM ROBINSON                           :
    :
    Appellant               :   No. 2370 EDA 2017
    Appeal from the PCRA Order June 21, 2017
    In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-0416191-1993
    BEFORE:      PANELLA, J., MURRAY, J., and STEVENS, P.J.E.
    JUDGMENT ORDER BY PANELLA, J.                         FILED OCTOBER 02, 2018
    William Robinson appeals, pro se, from the order dismissing his petition
    pursuant to the Post Conviction Relief Act (“PCRA”) as untimely. Robinson
    contends the PCRA court erred in failing to address his claims of an illegal
    sentence on the merits. We conclude the court properly recognized Robinson’s
    petition was time-barred, and therefore affirm.
    Robinson pled guilty to two counts each of robbery and aggravated
    assault, and one count of carrying a firearm on a public street, arising from
    Robinson’s use of a shotgun in an attempt to rob two victims. During the
    robbery, one of the victims was shot in the leg. The injuries from the gunshot
    ultimately required amputation.
    ____________________________________________
       Former Justice specially assigned to the Superior Court.
    J-S29010-18
    The court sentenced Robinson to an aggregate sentence of 42½ to 85
    years’ imprisonment. Robinson appealed, raising several issues with his
    sentence, including a claim that his sentences for aggravated assault should
    have merged with his sentences for robbery. This Court affirmed, and the
    Supreme Court of Pennsylvania denied review by order dated February 15,
    1996. Robinson did not appeal to the Supreme Court of the United States.
    In the following years, Robinson has filed three PCRA petitions. His
    second petition, filed in January 2012, was dismissed as untimely. The petition
    here, his third, claims his sentence was later rendered illegal in Alleyne v.
    United States, 
    570 U.S. 99
    (2013). In Alleyne, the Supreme Court of the
    United States held that sentencing factors used to support the imposition of a
    mandatory minimum sentence must be submitted to a jury for trial or
    admitted to by the defendant.
    However, before reaching the merits of Robinson’s claims, we must
    address our jurisdiction. Generally, the PCRA grants jurisdiction to hear a
    collateral attack on a conviction only if a petition is filed in the year after the
    judgment of sentence becomes final. See Commonwealth v. Jones, 
    54 A.3d 14
    , 16 (Pa. 2012). The judgment of sentence is finalized when the petitioner’s
    direct appeal rights have been exhausted. See 
    id., at 17.
    After the expiration
    of the one-year period, a petitioner must plead and prove one of three
    enumerated exceptions to the time-bar in order to establish jurisdiction under
    the PCRA. See 
    id. -2- J-S29010-18
    In his brief, Robinson argues his sentence was illegal for various
    reasons: a) his sentences should have merged; b) his sentences are a
    violation of double jeopardy; and c) his sentences violate Alleyne. See
    Appellant’s Brief, at (vi). Robinson did not plead, and does not contend on
    appeal, that his third petition was facially timely. In his reply brief, Robinson
    contends these issues were properly before the PCRA court, as he asserts
    claims of an illegal sentence can never be waived. See Appellant’s Reply Brief,
    at 1 (unnumbered).
    “Alleyne does not apply retroactively to cases pending on collateral
    review….” Commonwealth v. Washington, 
    142 A.3d 810
    , 820 (Pa. 2016).
    Furthermore, “in order for this Court to review a legality of sentence claim,
    there must be a basis for our jurisdiction to engage in such review.”
    Commonwealth v. Miller, 
    102 A.3d 988
    , 995 (Pa. Super. 2014) (citation
    omitted). Put another way, “[t]hough not technically waivable, a legality [of
    sentence] claim may nevertheless be lost should it be raised ... in an untimely
    PCRA petition for which no time-bar exception applies, thus depriving the court
    of jurisdiction over the claim.” 
    Id. (citation omitted;
    brackets in original).
    Robinson’s petition was clearly facially untimely. And he failed to plead
    or prove an exception to the time bar. Thus, the PCRA court properly dismissed
    the petition.
    Order affirmed.
    -3-
    J-S29010-18
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 10/2/18
    -4-
    

Document Info

Docket Number: 2370 EDA 2017

Filed Date: 10/2/2018

Precedential Status: Precedential

Modified Date: 10/2/2018