J-S24022-19

                                   2019 PA Super 260


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RODNEY BANKHEAD                            :
                                               :
                       Appellant               :   No. 1243 EDA 2018

              Appeal from the PCRA Order Entered March 27, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0012317-2009,
                            CP-51-CR-0014137-2012


BEFORE:      LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

OPINION BY McLAUGHLIN, J.:                             FILED AUGUST 23, 2019

        Rodney Bankhead appeals from the order dismissing as untimely his

Petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§

9541-9546. We affirm.

        Bankhead was convicted by a jury of one count of aggravated assault

and two counts of criminal solicitation.1 The underlying facts of these crimes

are not relevant to our disposition. The court sentenced Bankhead in 2014 to

serve an aggregate of 25 to 50 years’ incarceration. We affirmed Bankhead’s

judgment of sentence in 2015, and the Pennsylvania Supreme Court denied

Bankhead’s petition for allowance of appeal on April 11, 2016. Bankhead did



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*    Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 2702(a) and 902(a), respectively.
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not file a petition for a writ of certiorari in the Supreme Court of the United

States.

       Bankhead filed the instant PCRA Petition, his first, as of November 10,

2017.2 The petition alleged, inter alia, that the Commonwealth had knowingly

solicited false testimony from the complaining witness at trial, as evidenced

by her admissions that she had lied to the police during their investigation. He

also claimed that her testimony about the assault was contradicted by medical

records that the prosecution withheld, and that he was denied effective

assistance of counsel at trial.

       The PCRA court appointed counsel, who filed a no-merit letter pursuant

to Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988), and a motion

to withdraw. In the Finley letter, counsel advised Bankhead that his petition

was untimely under the PCRA. Counsel stated that although Bankhead had

asserted that several lockdowns at the prison had prevented him from

accessing the prison library, and that this might render the petition timely

under the governmental interference exception, counsel’s research indicated

these lockdowns occurred after the one-year deadline for filing the petition.



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2 The petition was docketed by the trial court on November 29, 2017, but the
certificate of service was dated November 10, 2017. The trial court deemed
the petition filed on November 10, and as the Commonwealth does not argue
otherwise, we consider this to be the date of filing pursuant to the prisoner
mailbox rule. See Commonwealth v. Saunders, 946 A.2d 776, 780 n.7
(Pa.Super. 2008) (finding Rule 1925(b) statement timely under prisoner
mailbox rule based on date of proof of service).

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       The PCRA court issued notice under Rule 907, advising Bankhead that

his Petition would be dismissed without a hearing. See Pa.R.Crim.P. 907.

Bankhead filed a pro se response, asserting his PCRA counsel was ineffective

for failing to research or promote his substantive PCRA claims. Bankhead’s pro

se response to the Rule 907 notice did not address the timeliness of his

Petition.

       The court thereafter dismissed the petition, but took no action on

counsel’s request to withdraw. Bankhead filed a timely, pro se notice of

appeal.3 Counsel thereafter filed a Rule 1925 Statement of Errors on

Bankhead’s behalf. See Pa.R.A.P. 1925(b).

       Bankhead then filed a pro se motion in this Court, asking to represent

himself on appeal. We remanded the matter to the PCRA court to hold a

hearing to ensure that Bankhead’s waiver of his right to counsel was knowing,

intelligent, and voluntary. The PCRA court held a hearing, and found Bankhead

had duly waived his right to counsel. Counsel thereafter filed a request to

withdraw in this Court; we granted counsel’s request to withdraw and allowed

Bankhead to proceed pro se.



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3Although he was at that point still represented by counsel, Bankhead was
not precluded from filing a pro se notice of appeal. Commonwealth v.
Williams, 151 A.3d 621, 624 (Pa.Super. 2016). Although Bankhead filed one
notice of appeal referencing two trial court docket numbers, we need not
quash under Commonwealth v. Walker, 185 A.3d 969, 976-77 (Pa. 2018),
because he appealed before the Supreme Court decided Walker, that is,
before June 1, 2018, and Walker applies only to appeals after that date.

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      Bankhead presents the following question, which we reproduce

verbatim:

      The question of whether a person may be said to actually have
      the time stated by legislative intent, specifically the one-year
      jurisdictional time bar of the PCRA, is subjective. Arguments have
      been thrown out which cited the difference between an
      uneducated Pro-Se defendant and one represented by counsel due
      to the general reasoning that the benefits of a legal education and
      a lawyer[’]s resources are counter-balanced by a defendant’s
      ability to research and prepare arguments on his own behalf.
      Perfect equality, after all, is not tolling not being applicable to
      PCRA litigation, the wholesale prejudice suffered due to
      Governmental Interference with legal matters, however,
      indifferent is untenable.

      To permit the DOC to enact gratuitous lockdowns which prejudice
      the legal interest of all inmates, in effect punishing people (like
      Appellant), had nothing to do with the cause of the lockdowns
      constitutes a gross miscarriage of justice. Would tolling not be
      permitted if the courts were closed due to a natural disaster?
      Lockdowns have already been referred to as a state of emergency
      (as has the Drug abuse which caused them). Thus, those same
      states of emergency should not count against any legal time
      limitations, jurisdictional or otherwise.

Bankhead’s Br. at iii.

      Bankhead argues that his Petition was timely under the “governmental

interference” exception, because multiple lockdowns at the prison allegedly

prevented him from accessing the prison library. Bankhead does not assert in

the body of his brief the date or length of any lockdowns. However, Exhibit A

to Bankhead’s brief purports to be a written response from prison staff to

Bankhead’s request for the dates of lockdowns. According to the response,

emergency lockdowns occurred on 15 dates between September 2016 and



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April 2017. Exhibit B, a similar document, shows more extensive lockdowns

beginning in August 2017.

      “When reviewing the denial of a PCRA petition, this Court’s standard of

review is limited ‘to whether the PCRA court’s determination is supported by

evidence of record and whether it is free of legal error.’” Commonwealth v.

Hart, 199 A.3d 475, 481 (Pa.Super. 2018) (quoting Commonwealth v. Pew,

189 A.3d 486, 488 (Pa.Super. 2018)).

      As the PCRA’s time restrictions are jurisdictional in nature, we may not

address   the   substantive   claims   presented   in   an   untimely   petition.

Commonwealth v. Rizvi, 166 A.3d 344, 347 (Pa.Super. 2017). Unless a

statutory exception applies, a PCRA petition must be filed within one year of

the date the petitioner’s judgment of sentence becomes final, which is at the

conclusion of direct review or the expiration of time for seeking such review.

42 Pa.C.S.A. § 9545(b)(1), (3).

      Here, the Pennsylvania Supreme Court denied review of Bankhead’s

judgment of sentence on April 11, 2016, after which he had until July 11, 2016

to seek review in the United States Supreme Court, which he did not do. See

U.S. Sup. Ct. R. 13.1 (allowing petitioner 90 days from entry of judgment to

file petition for writ of certiorari); U.S. Sup. Ct. R. 30.1 (providing when last

day of a deadline falls on a Sunday, deadline extends to next business day).

Bankhead then had one year to file a PCRA petition, i.e., until July 11, 2017.

His Petition of November 10, 2017, is therefore facially untimely.




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       A PCRA petition filed after the one-year deadline is nonetheless timely

if one of three statutory exceptions applies. See 42 Pa.C.S.A. § 9545(b)(1).

Relevant here, the “governmental interference” exception applies when “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.” Id. at § 9545(b)(1)(i). If the exception applies, the petitioner

must plead and prove that the petitioner presented the claim within 60 days

of the earliest date he or she could have presented it, and that the petitioner

exercised due diligence in obtaining the information. Id. at § 9545(b)(2);4

Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001) (applying due

diligence standard to governmental interference exception).

       Bankhead did not successfully plead and prove before the PCRA court

that this exception to the one-year deadline applies. First, neither his pro se

Petition nor his response to the Court’s Rule 907 notice asserted any time-bar

exception, including the governmental interference exception. Second,

although the Finley letter indicates that the governmental interference

exception might apply because Bankhead was unable at times to access the

prison library, without an assertion of illegality on the part of government

officials, restrictions on access to prison resources does not qualify a petition
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4 The General Assembly amended 42 Pa.C.S.A. § 9545(b)(2) to allow a
petitioner one year to file a petition from the date it first could have been filed.
The amendment applies to claims presented after December 24, 2017, and
thus does not apply to Bankhead’s Petition.

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for the governmental interference exception. See Rizvi, 166 A.3d at 348. In

addition, the lockdowns that the Finley letter references all occurred after

the July 11, 2017 one-year deadline. They thus could not logically have

prevented the timely filing of a petition.

      Moreover, although we cannot consider evidence that Bankhead did not

present to the PCRA court, the exhibits to Bankhead’s brief indicate that only

15 days of lockdowns occurred prior to the filing deadline, and ended in April

2017 – approximately three months before the one-year deadline. Therefore,

even if we did consider prison lockdowns to be governmental interference, and

even if Bankhead had presented the evidence of these 15 days to the PCRA

court, Bankhead failed to plead – much less prove – that he acted with due

diligence to file a petition within 60 days of the cessation of the lockdowns. 42

Pa.C.S.A. § 9545(b)(2); Breakiron, 781 A.2d at 98. As Bankhead filed his

Petition more than a year after his judgment of sentence became final, and

he has failed to plead and prove that any exception to the PCRA’s time

constraints apply, we affirm the order of the PCRA court dismissing the petition

as untimely.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/23/2019




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