Com. v. Banks, D.

J-A14038-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DENNIS JEROME BANKS, :
:
Appellant : No. 1114 MDA 2014
Appeal from the PCRA Order Entered June 9, 2014
in the Court of Common Pleas of Adams County,
Criminal Division, at No(s): CP-01-CR-0000042-2006
and CP-01-CR-0000049-2006
BEFORE: BENDER, P.J.E., JENKINS, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JULY 28, 2015
Dennis Jerome Banks (Appellant) appeals from the June 9, 20141
order which dismissed his petition filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
In 2007, following his convictions of numerous drug-related crimes at
the above two docket numbers, Appellant was sentenced to an aggregate
term of 10½ to 21 years of imprisonment.2 This Court denied Appellant
relief on direct appeal, and his judgment of sentence became final in 2009
after our Supreme Court denied his petition for allowance of appeal.
1
The order is dated June 5 and was entered on the docket on June 6;
however, the docket reflects that the order was not mailed to Appellant until
June 9, 2014.
2
This included application of mandatory minimum sentences pursuant to 18
Pa.C.S. § 7508(a)(3)(i).
*Retired Senior Judge assigned to the Superior Court.
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Commonwealth v. Banks, 954 A.2d 31 (Pa. Super. 2008) (unpublished
memorandum), appeal denied, 964 A.2d 893 (Pa. 2009).
Appellant’s first, timely-filed PCRA petition resulted in no relief.
Appellant filed the petition that is the subject of the instant appeal on March
17, 2014. Therein, he claimed that he is entitled to relief in the form of
resentencing because his sentence is illegal under Alleyne v. United
States, ––– U.S. –––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (holding
that a fact which triggers the imposition of a mandatory minimum sentence
is an element of the crime and must, therefore, be determined beyond a
reasonable doubt by a jury). Motion for Post Conviction Collateral Relief,
3/17/2014, at 3.
The PCRA court issued notice of its intent to dismiss the petition
without a hearing, to which Appellant filed a response in opposition. On
June 9, 2014, the PCRA court entered an order dismissing Appellant’s
petition based upon lack of jurisdiction. Appellant timely filed a notice of
appeal, and both Appellant and the PCRA court complied with Pa.R.A.P.
1925. On appeal, Appellant claims that the PCRA court erred in determining
that his petition was untimely filed.
The timeliness of a post-conviction petition is jurisdictional. See,
e.g., Commonwealth v. Lewis, 63 A.3d 1274, 1280-81 (Pa. Super. 2013)
(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)) (“[I]f
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a PCRA petition is untimely, neither this Court nor the [PCRA] court has
jurisdiction over the petition. Without jurisdiction, we simply do not have
the legal authority to address the substantive claims.”).
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
of sentence is final unless the petition alleges, and the petitioner proves,
that an exception to the time for filing the petition is met, and that the claim
was raised within 60 days of the date on which it became available. 42
Pa.C.S. § 9545(b) and (c).
It is clear that Appellant’s 2014 petition is facially untimely: his
judgment of sentence became final in 2009. However, Appellant alleges that
his petition satisfies the following timeliness exception: “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.” 42 Pa.C.S. § 9545(b)(1)(iii).
Appellant’s argument is unavailing. As the PCRA court aptly noted, the
exception does not apply because Appellant’s petition was not filed within 60
days of the Alleyne decision. PCRA Court Opinion, 9/3/2014, at 4; see
also Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa. Super. 2007) (“With
regard to an after-recognized constitutional right, this Court has held that
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the sixty-day period begins to run upon the date of the underlying judicial
decision.”). Furthermore,
[e]ven assuming that Alleyne did announce a new
constitutional right, neither our Supreme Court, nor the United
States Supreme Court has held that Alleyne is to be applied
retroactively to cases in which the judgment of sentence had
become final. This is fatal to Appellant’s argument regarding the
PCRA time-bar.
Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014).
Accordingly, Appellant failed to establish the applicability of a
timeliness exception, and the PCRA court properly dismissed the petition for
lack of jurisdiction.3
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2015
3
As the PCRA court noted in its order dismissing Appellant’s petition, the
timeliness exception of 42 Pa.C.S. § 9545(b)(1)(iii) may be available to
Appellant in the future if an appropriate court holds that the Alleyne
decision is a new right with retroactive application. Order, 6/9/2014.
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