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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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