Com. v. Banks, R. ( 2017 )

J-S13042-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
RILEY BANKS
Appellant No. 1527 EDA 2016
Appeal from the PCRA Order May 9, 2016
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s):
CP-51-CR-0309081-2005
CP-51-CR-0407441-2005
BEFORE: BENDER, LAZARUS, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MARCH 15, 2017
Appellant, Riley Banks, appeals pro se from the order dismissing his
second Post Conviction Relief Act1 (“PCRA”) petition as untimely. Appellant
claims that his sentence is illegal under Alleyne v. United States, 133 S.
Ct. 2151 (2013), and that Commonwealth v. Washington, 142 A.3d 810,
820 (Pa. 2016), which held that Alleyne “does not apply retroactively to
cases pending on collateral review[,]” was wrongly decided. We affirm.
The PCRA court has ably summarized the factual and procedural
history of this appeal. See PCRA Ct. Op., 6/8/16, at 1-4. It suffices here to
note that Appellant was sentenced on October 26, 2006, to an aggregate
thirty-one to sixty-two years’ imprisonment for numerous sexual offenses.
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9545.
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This Court affirmed the judgment of sentence on January 3, 2008,
Commonwealth v. Banks, 3215 EDA 2006 (Pa. Super. Jan. 3, 2008)
(unpublished memorandum), and Appellant did not seek allowance of appeal
in the Pennsylvania Supreme Court.
After his first, unsuccessful attempt at PCRA relief, Appellant filed the
instant pro se PCRA petition on March 22, 2013. The PCRA court issued a
Pa.R.Crim.P. 907 notice of its intent to dismiss the petition, to which
Appellant filed a response. The court thereafter dismissed the petition on
May 9, 2016. This timely appeal followed.2
Appellant presents the following question for review:
Whether the legality of a sentence may be raised for the
first time on post-conviction?
Whether Appellant’s sentence is illegal pursuant to an
unconstitutional sentencing statute?
Whether the lower Court erred in refusing to grant relief
through the PCRA?
Appellant’s Brief at 4.
Because the timeliness requirements of the PCRA are jurisdictional in
nature, we first review the PCRA court’s determination that Appellant’s
petition was untimely. See Commonwealth v. Fahy, 737 A.2d 214, 223
(Pa. 1999). “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
2
The PCRA court did not order the filing of a Pa.R.A.P. 1925(b) statement.
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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).
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).
Subsection (iii) of Section 9545[(b)(1)] has two
requirements. First, it provides that 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 provided in this section.
Second, it provides that the right “has been held” by “that
court” to apply retroactively. Thus, a petitioner must
prove that there is a “new” constitutional right and that the
right “has been held” by that court to apply retroactively.
The language “has been held” is in the past tense. These
words mean that the action has already occurred, i.e.,
“that court” has already held the new constitutional right
to be retroactive to cases on collateral review. By
employing the past tense in writing this provision, the
legislature clearly intended that the right was already
recognized at the time the petition was filed.
Commonwealth v. Miller, 102 A.3d 988, 994 (Pa. Super. 2014) (citation
omitted). The PCRA time limitations are not subject to the doctrine of
equitable tolling, and all claims, including legality of sentencing challenges,
must be presented in a timely PCRA petition. Fahy, 737 A.2d at 222-23.
The petitioner bears the burden of proving a timeliness exception. See
Miller, 102 A.3d at 993.
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Instantly, there is no dispute that Appellant’s petition, filed on March
22, 2013, was not filed within one year from the date his conviction became
final, i.e., by February 3, 2009. See 42 Pa.C.S. § 9545(b)(1), (3). Although
Appellant argues that he should be entitled to a time-bar exception based on
various theories, including his assertion that the Pennsylvania Supreme
Court’s decision in Washington was wrongly decided,3 he provides no basis
to conclude that the constitutional rights on which he seeks relief were held
to be retroactive by the Pennsylvania or United States Supreme Court. See
42 Pa.C.S. § 9545(b)(1)(iii); Miller, 102 A.3d at 994. Accordingly,
Appellant has not carried his burden of establishing that his petition was
timely filed.
Thus, we affirm the order of the PCRA court dismissing Appellant’s
petition without a hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/15/2017
3
It is well settled that this Court’s “jurisprudential task is to effectuate the
decisional law of the [Pennsylvania Supreme] Court, not to restrict it through
curtailed readings of controlling authority.” Commonwealth v. Millner,
888 A.2d 680, 693 (Pa. 2005) (citation omitted).
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