NON-PRECEDENTIAL DECISION — SEE SUPERIOR COURT I.O.P. 65.37

MEMORANDUM BY FITZGERALD, J.

Appellant, Robert E. Robinson, appeals pro se from the order denying his serial petition for post-conviction relief filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. Appellant claims he is entitled to relief based on his recent discovery of his trial counsel's substance abuse issues and ineffective assistance, as well as sentencing relief based on Miller v. Alabama, 132 S.Ct. 2455 (2012), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016). We affirm in part, vacate in part, and remand for further proceedings.

A summary of the pertinent facts and procedural history follows. Appellant was eighteen-years-old when he committed the offenses giving rise to the underlying conviction. On July 1, 1983, Appellant pleaded guilty to second-degree murder and criminal conspiracy. On August 22, 1983, the trial court sentenced him to life imprisonment for murder and a concurrent period of ten to twenty years of imprisonment for conspiracy. Appellant did not file a post-sentence motion seeking to withdraw his guilty plea.

Appellant filed a timely appeal to this Court. In an unpublished memorandum filed on March 1, 1985, we concluded that Appellant's failure to file a motion to withdraw his plea before the trial court waived his right to challenge the plea on direct appeal. See Commonwealth v. Robinson, 2384 PHL 1983 (Pa. Super. filed Mar. 1 1985) (unpublished memorandum).

Between 1986 and 2007, Appellant filed numerous petitions for post-conviction relief, which were dismissed as either lacking in merit or being untimely. In 2010, Appellant filed his seventh PCRA petition, in which he claimed that he discovered new evidence in his school records of his borderline intelligence. He asserted that this mental deficiency, along with bad advice from the trial court and/or trial counsel regarding his eligibility for parole from a life sentence, caused him to enter an invalid plea. In an unpublished memorandum filed on June 4, 2013, this Court concluded that Appellant's seventh petition was untimely and that he failed to establish any exception to the PCRA's time bar. Commonwealth v. Robinson, 1485 EDA 2012 (Pa. Super. filed June 4, 2013) (unpublished memorandum). On December 4, 2013, our Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Robinson, 81 A.3d 77 (Pa. 2013). Meanwhile, on August 21, 2012, Appellant filed his eighth PCRA petition in which he claim he was entitled to relief pursuant to the United States Supreme Court's decision in Miller.

While Appellant's eighth petition was pending in the PCRA court, Appellant filed another PCRA petition on June 19, 2015. Appellant asserted that he possessed newly-discovered evidence that his trial counsel had a substance abuse issue in the early 1980s, and that counsel's addiction caused Appellant to enter an invalid plea. Appellant further raised a claim of governmental interference with the presentation of his assertion regarding counsel's drug abuse, suggesting that the Commonwealth was aware of counsel's drug issues and withheld the information from him.

On September 22, 2015, the PCRA court issued a Pa.R.Crim.P. 907 notice of intent to dismiss Appellant's eighth and ninth petitions without a hearing. Appellant filed a response on September 30, 2015. After reviewing the response, the court denied the petitions on October 27, 2015. This timely appeal follows.1

Appellant raises the following issues:

Appellant's Brief at vi (excess capitalization omitted).

This Court's standard of review regarding an order dismissing 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. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). 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). Moreover, a PCRA court may decline to hold a hearing on the petition if the "petitioner's claim is patently frivolous and lacks a trace of support in either the record or from other evidence." Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001).

Because this is an appeal from Appellant's eighth and ninth petitions for post-conviction relief, we note that his petitions must meet a more stringent standard. "A second or any subsequent post-conviction request for relief will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred." Commonwealth v. Burkhardt, 833 A.2d 233, 236 (Pa. Super. 2003) (en banc) (citations and quotation marks omitted). "A petitioner makes a prima facie showing if he demonstrates that either the proceedings which resulted in his conviction were so unfair that a miscarriage of justice occurred which no civilized society could tolerate, or that he was innocent of the crimes for which he was charged." Id. (citations and quotation marks omitted).

The timeliness of a post-conviction petition is jurisdictional. Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). Generally, a PCRA petition, including a second or subsequent petition, must be filed within one year of the date the judgment is final unless the petition alleges, and the petitioner proves, that an exception to the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii), is met.2 See 42 Pa.C.S § 9545(a), (b). A petition invoking one of these statutory exceptions must "be filed within 60 days of the date the claims could have been presented." See Hernandez, 79 A.3d at 651-52 (citation omitted); see also 42 Pa.C.S. § 9545(b)(2). Finally, exceptions to the PCRA's time bar must be pleaded in the petition, "and may not be raised for the first time on appeal." Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007) (citations omitted).

Appellant filed his ninth petition in June 2015 seeking relief from a judgment of sentence that became final over thirty years ago. Therefore, that petition was facially untimely unless he has satisfied his burden of pleading and proving that one of the enumerated exceptions applies. See Hernandez, 79 A.3d at 651-52.

As to his June 2015 petition, Appellant claims that he timely filed it within sixty days of receiving information from a fellow prisoner about trial counsel's drug problem. Appellant attached as exhibits several supporting documents, including his affidavit in which he explains how and when the fellow prisoner gave him the information, copies of newspaper articles regarding trial counsel's criminal conduct, and a 2011 letter from trial counsel—in which counsel continued to opine that Appellant was eligible for parole. Additionally, Appellant attached a copy of trial counsel's 1994 arraignment and a transcript of the April 29, 1994 plea hearing at which counsel pleaded guilty to unlawful possession of cocaine in the United States District Court for the Eastern District of Pennsylvania.

When considering a PCRA's petitioner's claim that he has established an exception to the PCRA's time bar under Section 9545(b)(1)(ii), the petitioner must establish only that the facts upon which the claims are predicated were unknown to him, and that he could not have ascertained the facts earlier despite the exercise of due diligence. Commonwealth v. Bennett, 930 A.2d 1264, 1270-72 (Pa. 2007). The determination of timeliness does not require a merits analysis.3 See id.; see also Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008); Commonwealth v. Brown, 141 A.3d 491, 500 (Pa. Super. 2016). Compare 42 Pa.C.S. § 9545(b)(1)(ii) with 42 Pa.C.S. § 9543(a)(2)(vi).

In its Pa.R.A.P. 1925(a) opinion, the PCRA court concluded that Appellant's claim did not constitute newly-discovered evidence:

PCRA Ct. Op., 11/16/15, at 4.

In reaching this conclusion, the PCRA court "appear[s] to conflate the newly-discovered fact exception with an after-discovered evidence claim." See Brown, 141 A.3d at 500. The PCRA court, without first determining whether Appellant exercised due diligence in discovering the new evidence, found the claim unconvincing as a basis for withdrawing his plea. Thus, we vacate the PCRA court's order insofar as it relates to Appellant's newly-discovered evidence claim, and remand for an evidentiary hearing to determine whether Appellant has pled and proved the applicability of the newly-discovered fact exception. See Brown, 141 A.3d at 500. To the extent Appellant's third issue impacts the decision on Appellant's first two issues, Appellant may proffer any additional evidence to support his claim upon remand.

In his final issue, Appellant asserts that the PCRA court erred in denying him post-conviction relief based upon the United States Supreme Court's recent opinions in Miller, and Montgomery.4 As acknowledged by Appellant, the high court in Miller held that a statute requiring a mandatory life sentence without possibility of parole for a juvenile convicted of first or second-degree murder violates the Eighth Amendment's prohibition against cruel and unusual punishment. Furthermore, in Montgomery, the high court concluded that Miller applied retroactively. Our review of the record in this case, however, supports the PCRA court's conclusion that this federal precedent is inapplicable to Appellant because he was not a juvenile at the time he committed the murder. See PCRA Ct. Op. at 4. Moreover, Pennsylvania precedent has rejected Appellant's equal protection arguments regarding Miller's application. See, e.g., Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013). Thus we affirm that portion of the order denying Appellant post-conviction relief on this claim.

Order affirmed in part and vacated in part. Case remanded for proceedings consistent with this memorandum. Jurisdiction relinquished.

Judge Panella joins the memorandum.

Judge Bowes files a concurring and dissenting memorandum.

CONCURRING AND DISSENTING MEMORANDUM BY BOWES, J.

I agree with the majority's holding, in this appeal from an order dismissing two PCRA petitions as untimely, that Appellant's petition advancing a Miller v. Alabama, 567 U.S. 460 (2012) claim fails to satisfy any exception to the one-year time-bar. However, I do not agree that we must remand for an evidentiary hearing to determine whether Appellant satisfied any exception with respect to his second petition. Hence, I concur and dissent from the majority's disposition.

This case concerns the timeliness of Appellant's eighth and ninth attempts to secure PCRA relief. The eighth petition submitted that Appellant was entitled to relief pursuant to Miller v. Alabama, 567 U.S. 460 (2012). While that petition was still pending, Appellant filed another petition, docketed June 19, 2015, alleging new facts concerning trial counsel's alleged drug use. The PCRA court disposed of both petitions in the instant order. I fully agree with my learned colleagues that the petition raising his Miller claim failed to invoke the PCRA court's jurisdiction since Appellant was over eighteen at the time of the murder.

I depart from my colleagues with respect to its disposition of the portion of the PCRA order dismissing the June 19, 2015 petition as untimely. The basis for that petition was as follows. Appellant alleged that Bruce Quarles, a fellow prisoner, overheard Appellant complaining about trial counsel. Quarles stated he knew of trial counsel and supplied documentation regarding trial counsel's purchase of cocaine in the Caribbean Islands in May of 1982. "Mr. Quarles told me 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." PCRA Petition, 6/19/15, at 4-A. That petition attached three exhibits: a newspaper article dated May 29, 1982, stating that Appellant's trial counsel was fired from his job as an Assistant District Attorney in Philadelphia due to an FBI informant alleging trial counsel 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.

Appellant's PCRA petition submitted that these facts satisfied the second of the three exceptions to the PCRA's one-year time period. These exceptions are:

42 Pa.C.S. § 9545(b)(1)(i)-(iii) (emphasis added). Additionally, any petition seeking to invoke one of these three exceptions "shall be filed within 60 days of the date the claim could have been presented." 42 Pa.C.S. § 9545(b)(2). The PCRA court's rationale for finding that Appellant failed to satisfy these requirements is set forth in its opinion:

Trial Court Opinion, 11/18/15, at 4.

As the majority recognizes, the inquiry applied to determine whether a PCRA petitioner has satisfied the § 9545(b)(1)(ii) exception is wholly distinct from the analysis applied to the merits of any claim which relies upon said facts. Our Supreme Court recently described this section as providing a gate-keeping function. "The function of a section 9545(b)(1)(ii) analysis is that of a gatekeeper. Its inquiry, therefore, is limited to considering only the existence of a previously unknown fact that would allow a petitioner to avoid the strict one year time-bar." Commonwealth v. Cox, 146 A.3d 221, 229, n.11 (Pa. 2016). Thus, the legal inquiry for jurisdictional purposes is limited to examining whether the facts were unknown, and, if so, whether the subsequent uncovering of the facts was done with due diligence, which "requires neither perfect vigilance nor punctilious care, but rather it requires reasonable efforts by a petitioner, based on the particular circumstances, to uncover facts that may support a claim for collateral relief." Commonwealth v. Burton, 121 A.3d 1063, 1071 (Pa.Super. 2015) (en banc), appeal granted, 134 A.3d 446 (Pa. 2016). Provided the petitioner has satisfied those two prongs, only then is a merits analysis proper.

I agree that the PCRA court's disposition appears to conflate the two inquiries. However, while I agree that the PCRA court erred, I disagree that this error requires a remand for an evidentiary hearing. For the following reasons, I find that we must affirm the order denying relief.

First, § 9545(b)(1)(ii) requires the petitioner to establish due diligence, and it is clear that Appellant cannot meet that requirement. The lack of discussion by the PCRA court on this point does not require a remand, since we conduct de novo review of legal questions. Since the exercise of due diligence presents a question of law, Commonwealth v. Selenski, 994 A.2d 1083 (Pa. 2010), we may affirm on that alternative basis. Commonwealth v. Wiley, 966 A.2d 1153, 1157 (Pa.Super. 2009) (this Court may affirm the decision of PCRA court if decision is supported by record, even if we rely on a different basis).

Indeed, Cox, supra, affirmed the denial of PCRA relief where the order contained the same exact legal error at issue herein. The Court concluded that Cox failed to demonstrate due diligence; hence, the PCRA court lacked jurisdiction to entertain the claim. Cox therefore affirmed the order.

Id. at 230. The same is true herein. Appellant has failed to establish that he could not have ascertained the facts regarding trial counsel's substance abuse issues through the exercise of due diligence. The exhibits attached to the PCRA petition were in the public domain, which is presumptively accessible and available. See Commonwealth v. Taylor, 67 A.3d 1245, 1248-49 (Pa. 2013) ("This Court has found matters of public record are not unknown."). In Burton, supra, we modified this presumption where a pro se defendant is incarcerated.

Id. at 1072. On its face, Burton would appear to support the majority's determination to remand for an evidentiary hearing to permit Appellant an opportunity to develop this claim. However, Appellant's own brief reveals that he was aware of trial counsel's substance abuse issues no later than October of 2014. "On or about October 20, 2014, [A]ppellant received a computer print-out from his aunt, an article she found . . . This is when the Appellant found out his attorney was involved with cocaine and was trafficking the drugs etc." Appellant's brief at 7. Hence, Appellant has failed to explain why, assuming arguendo that he could not have discovered this information prior to October 20, 2014, he did not file the PCRA petition within sixty days of that date. 42 Pa.C.S. § 9545(b)(2).

While I would hold that the lack of due diligence is sufficient to resolve the matter, I also note that Appellant does not set forth any facts that would entitle him to relief, rendering any evidentiary hearing irrelevant. We could affirm on this basis as well. In reaching this conclusion, I recognize that in Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007), our Supreme Court stated that the (b)(1)(ii) exception merely requires the petitioner "to allege and prove that there were `facts' that were `unknown' to him and that he exercised `due diligence.'" Id. at 1270. In Bennett, the fact at issue was PCRA counsel's failure to file a brief on appeal of a timely PCRA petition. Bennett then filed a second PCRA petition seeking reinstatement of his PCRA appellate rights, invoking § 9545(b)(1)(ii). Bennett determined that "[Bennett]'s allegations bring his claim within the ambit of subsection (b)(1)(ii) . . . he must also prove that the facts were `unknown' to him and that he could not uncover them with the exercise of `due diligence.'" Id. at 1274. Thus, the Court remanded for fact-finding on those questions.

Then-Justice, now Chief Justice, Saylor authored a dissenting opinion, stating that "a consistent plain-meaning approach to Section 9545(b)(1)(ii) should also subsume an equally straightforward approach to the words that the statute employs, including the word `claim.'" Id. at 1276. In his view, the claim was not cognizable under the PCRA, "because [Bennett]'s conviction and sentence did not result from such ineffectiveness, and because the asserted prejudice does not go directly to the truth-determining process, as the language of the PCRA contemplates." Id. at 1276 (Saylor, J., dissenting). Thus, then-Justice Saylor would have held that the facts could not provide relief.

However, I do not read Bennett or Cox as requiring a PCRA court to hold an evidentiary hearing whenever a litigant sets forth any fact whatsoever. There must be room to consider whether the purported facts could establish a viable legal claim. As an absurd example, suppose an incarcerated individual filed a PCRA petition claiming that he recently learned that the Chicago Cubs won the World Series. No one would suggest that the PCRA court must rigidly determine whether that fact was unknown and whether it could have been learned through due diligence without any consideration of whether that fact is relevant to any possible issue in the case. While 42 Pa.C.S. § 9545(b)(1)(ii) acts as a gatekeeper, that label obviously contemplates that there is a reason to open the gate in the first place.1 To require an evidentiary hearing in all cases, as the majority appears to require, clearly elevates form over substance.

Thus, in my view, nothing prevents a reviewing court from affirming the denial of PCRA relief on the basis that the claim could not possibly lead to relief even assuming the untimely petition satisfied the exception. The Supreme Court discussed this point in Commonwealth v. Yarris, 731 A.2d 581 (Pa. 1999), stating:

Id. at 591-92 (emphasis added). Thus, in Yarris, the facts offered to overcome the time-bar could not have resulted in a new trial, even if timely presented. I do not read Cox to abandon this avenue of analysis.

Applying this principle, it is clear that Appellant's claim, even if timely, would not entitle him to relief under the PCRA. Even if every allegation in Appellant's PCRA petition is completely true, none of the facts could possibly demonstrate that trial counsel was ineffective. It is the advice itself that would ultimately be at issue in any properly-filed PCRA petition. Hence, whether or not trial counsel consumed drugs in general, or even whether he was under the influence on the day of his plea, is irrelevant. See Bonin v. Calderon, 59 F.3d 815 (9th Cir. 1995) ("Because we conclude . . . that [counsel]'s performance did not fall below the standard of objective reasonableness, it is irrelevant whether [counsel] used drugs."). The time for Appellant to timely attack the objective reasonableness of the supplied advice has long since passed. Hence, these purported facts could not lead to any grant of relief whatsoever. Therefore, there is no need to hold an evidentiary hearing, even if the record did not indicate whether or not Appellant could demonstrate due diligence. Thus, we could affirm on this basis as well.

Accordingly, for the foregoing reasons, I concur and dissent from the majority's disposition of the order denying PCRA relief.