J-S06043-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ANTHONY VINCENT BANKS
Appellant No. 1264 EDA 2016
Appeal from the PCRA Order March 28, 2016
in the Court of Common Pleas of Delaware County Criminal Division
at No(s): CP-23-CR-0005078-1998
BEFORE: MOULTON, RANSOM, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED FEBRUARY 15, 2017
Appellant, Anthony Vincent Banks, appeals pro se from the order
dismissing his third Post Conviction Relief Act1 (“PCRA”) petition as untimely.
Appellant (1) claims that his sentence is illegal because a count of
aggravated assault should have merged into a count of third-degree murder,
(2) contends the trial court imposed a mandatory minimum sentence that
was not requested by the Commonwealth, (3) notes that a challenge to the
legality of sentence cannot be waived, and (4) asserts his sentence was also
excessive. We affirm.
The PCRA court summarized the procedural history of this appeal as
follows:
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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On April 22, 1999, Appellant entered into a nolo
contendere plea to Info A: Third Degree Murder, Info D:
Aggravated Assault, and Info H: Possession of a Firearm
Without a License. [On the same day,] Appellant was
sentenced as follows: Info A: 17-40 years[’ imprisonment]
SCI; Info D: 5-10 years SCI consecutive to Info A; and
Info H: 1-2 years concurrent to Info A.[ The murder and
aggravated assault charges were for separate victims.
Appellant did not file post-sentence motions or take a
direct appeal.]
Appellant filed his first [pro se] PCRA petition on January
10, 2000. Counsel was appointed and an amended
petition was filed. The PCRA court held a hearing on April
10, 2000. After review, the PCRA court denied the PCRA
petition. That decision was appealed and ultimately
affirmed by the Superior Court on May 14, 2001.
Appellant filed a second [pro se] PCRA petition on August
9, 2002, which was denied on January 31, 2003. The
decision was affirmed by the Superior Court and the
Pennsylvania Supreme Court denied Appellant’s petition
[for] allowance of appeal on June 23, 2004.
On December 14, 2015, Appellant filed a “Motion to Modify
And /Or Correct An Illegal Sentence Due to a Violation of
the Merger Doctrine.” This [c]ourt was miscellaneously
assigned the Petition. After review of Appellant’s
arguments, this [c]ourt determined that the Petition should
be treated as a Post-Conviction Relief Act Petition. On
February 2, 2016, this [c]ourt issued a Notice of Intent to
Dismiss Without a Hearing; Appellant filed a response.
The Petition was . . . dismissed on March 28, 2016.
PCRA Ct. Op., 5/4/16, at 1-2.
Appellant timely appealed the order dismissing his third PCRA petition.
The PCRA court did not order a Pa.R.A.P. 1925(b) statement, but filed an
opinion suggesting that the petition was untimely filed.
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Appellant has submitted a pro se brief in which he challenges the
legality and discretionary aspects of his sentence. In response to the PCRA
court’s determination that the instant petition was not timely filed, he
asserts that
it is legally and well documented that the [t]rial court has
and does retain jurisdiction to hear and review, and to also
grant relief to any and all claims, and challenges to the
legality of a sentence, thus the A.E.D.P.A. time limitations
[d]oes [n]ot apply and this Court does have jurisdiction.
Appellant’s Brief at i. We disagree.
“Our standard of review of a PCRA court’s dismissal of a PCRA petition
is limited to examining whether the PCRA court’s determination is supported
by the evidence of record and free of legal error.” Commonwealth v.
Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted).
However, it is well established that:
the PCRA timeliness requirements are jurisdictional in
nature and, accordingly, a PCRA court is precluded from
considering untimely PCRA petitions. See, e.g.,
Commonwealth v. Murray, 753 A.2d 201, 203 ([Pa.]
2000) (stating that “given the fact that the PCRA’s
timeliness requirements are mandatory and jurisdictional
in nature, no court may properly disregard or alter them in
order to reach the merits of the claims raised in a PCRA
petition that is filed in an untimely manner”);
Commonwealth v. Fahy, 737 A.2d 214, 220 ([Pa.] 1999)
(holding that where a petitioner fails to satisfy the PCRA
time requirements, this Court has no jurisdiction to
entertain the petition).
Commonwealth v. Whitney, 817 A.2d 473, 477-78 (Pa. 2003) (some
citations and parallel citations omitted).
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A PCRA petition “must normally be filed within one year of the date the
judgment becomes final . . . unless one of the exceptions in § 9545(b)(1)(i)-
(iii) applies and the petition is filed within 60 days of the date the claim
could have been presented.” Commonwealth v. Copenhefer, 941 A.2d
646, 648 (Pa. 2007) (citations and footnote omitted). Pursuant to 42
Pa.C.S. § 9545(b)(3), “[a] judgment becomes final at the conclusion of
direct review by this Court or the United States Supreme Court, or at the
expiration of the time seeking such review.” Commonwealth v. Jones, 54
A.3d 14, 17 (Pa. 2012) (citations omitted).
When a PCRA petition is filed outside the one-year time limit,
petitioners must plead and prove the applicability of one of the three
exceptions to the PCRA timing requirements. Commonwealth v.
Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012). The three exceptions to
the general one-year time limitation 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 the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States or
the Supreme Court of Pennsylvania after the time period
provided in this section and has been held by that court to
apply retroactively.
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42 Pa.C.S. § 9545(b)(1)(i)-(iii). The Pennsylvania Supreme Court has held
that “[a]lthough legality of sentence is always subject to review within the
PCRA, claims must still first satisfy the PCRA’s time limits or one of the
exceptions thereto.” Fahy, 737 A.2d at 223 (citation omitted).
Instantly, Appellant’s April 22, 1999 conviction became final after the
period for taking a direct appeal lapsed on Monday, May 24, 1999. See 42
Pa.C.S. § 9545(b)(3); see also 1 Pa.C.S. § 1908; Pa.R.A.P. 903(a), (c)(3).
Therefore, the instant petition filed in December 2015 was facially untimely,
and Appellant bore the burden of establishing an exception under 42 Pa.C.S.
§ 9545(b)(1)(i), (ii), or (iii).
Although Appellant asserts that a challenge to the legality of the
sentence cannot be waived, he disregards that he must still satisfy
timeliness requirements of the PCRA by stating an exception to the one-year
time requirement. See Fahy, 737 A.2d at 223. Our review of the record
and Appellant’s pro se brief reveals that Appellant did not carry this burden.
Therefore, we discern no basis to conclude that the PCRA court erred in
dismissing the instant petition as untimely.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/15/2017
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