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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ERIC THEADY BANKS

                            Appellant                No. 1521 MDA 2014


                Appeal from the Order Entered August 21, 2014
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0001637-2011

BEFORE: OTT, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                         FILED AUGUST 14, 2015

       This is an appeal from an order dated August 21, 2014 denying Eric

Banks’ second petition under the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. § 9541 et seq. We affirm.

       Following a non-jury trial, the lower court found Banks guilty of

firearms not to be carried without a license, persons not to possess firearms

and possession of a small amount of marijuana.1 The lower court sentenced

Banks to an aggregate term of 5-10 years’ imprisonment.         Banks filed a

direct appeal to the Superior Court, which affirmed his judgment of sentence

on May 8, 2012.         Banks filed a petition for allowance of appeal in the



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1
  18 Pa.C.S. §§ 6106(a)(1) and 6105 and 35 P.S. § 780-113(a)(31),
respectively.
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Supreme Court but subsequently withdrew his petition via praecipe on

December 3, 2012.

       On December 12, 2012, Banks filed a timely PCRA petition. The lower

court appointed Thomas Gregory, Esquire to represent Banks in the PCRA

proceeding. Mr. Gregory filed an amended PCRA petition on Banks’ behalf.

On March 25, 2013, the lower court denied the amended petition.           Banks

appealed to the Superior Court, which affirmed on May 13, 2014.           Banks

filed a petition for allowance of appeal in the Supreme Court at 408 MAL

2014, which denied his petition on December 3, 2014.

       On August 18, 2014, while Banks’ petition for allowance of appeal was

pending in the Supreme Court at 408 MAL 2014, Banks filed a second PCRA

petition in the lower court. On August 21, 2014, the lower court denied this

PCRA petition without a hearing. On September 9, 2014, Banks, acting pro

se, filed a notice of appeal to the Superior Court, the appeal presently

pending before us. On October 3, 2014, again acting pro se, Banks filed a

Pa.R.A.P. 1925(b) statement in the lower court alleging that his sentence is

illegal under Alleyne v. United States, -- U.S. --, 113 S.Ct 2151 (2013).2




____________________________________________


2
  Alleyne held that “the constitutional jury trial right requires any fact, other
than a prior conviction, that triggers a mandatory minimum sentence to be
proven beyond a reasonable doubt before the finder of fact.”
Commonwealth v. Riggle, -- A.3d --, 2015 WL 4094427, *3 (Pa.Super.,
July 7, 2015).



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On October 30, 2014, the lower court issued a Pa.R.A.P. 1925(a) opinion

stating that Banks’ second PCRA petition was untimely.

      This Court served Mr. Gregory with a briefing schedule in this appeal.

On December 1, 2014, Mr. Gregory filed a motion in this Court to withdraw

as counsel and attached a “no-merit” letter under Commonwealth v.

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

544 A.2d 927 (Pa.1988), stating that (1) Alleyne did not apply retroactively

to Banks’ case, and (2) Alleyne did not apply because Banks did not receive

any mandatory minimum sentence.

      On December 10, 2014, this Court entered the following per curiam

order:

            In light of the fact that appellant’s counsel, Thomas
            W. Gregory Jr., Esquire, has filed a petition to
            withdraw as counsel pursuant to Commonwealth v.
            Turner,     544    A.2d    927     (Pa.    1988)   and
            Commonwealth v. Finley, 550 A.2d 213 (Pa.
            Super. 1988), the appellant shall be permitted to file
            a response to counsel’s petition to withdraw and no-
            merit letter, either pro se or via privately retained
            counsel, within thirty (30) days of the date that this
            Order is filed. Appellant’s failure to file a pro se or
            counseled response may be considered as a waiver
            of his right to present his issues to this Court. The
            Commonwealth’s brief shall be due sixty (60) days
            from the date that this Order is filed.

Although almost eight months have elapsed since the date of this order,

Banks has filed neither a counseled nor a pro se response to Mr. Gregory’s

petition to withdraw.

      In PCRA appeals, our standard and scope of review are well-settled:

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          We review an order dismissing a petition under the
          PCRA in the light most favorable to the prevailing
          party at the PCRA level. This review is limited to the
          findings of the PCRA court and the evidence of
          record. We will not disturb a PCRA court’s ruling if it
          is supported by evidence of record and is free of
          legal error. This Court may affirm a PCRA court’s
          decision on any grounds if the record supports it. We
          grant great deference to the factual findings of the
          PCRA court and will not disturb those findings unless
          they have no support in the record. However, we
          afford no such deference to its legal conclusions.
          Further, where the petitioner raises questions of law,
          our standard of review is de novo and our scope of
          review is plenary.

                                    ***
          The Turner/Finley decisions provide the manner for
          postconviction      counsel     to withdraw    from
          representation. The holdings of those cases mandate
          an independent review of the record by competent
          counsel before a PCRA court or appellate court can
          authorize an attorney’s withdrawal. The necessary
          independent review requires counsel to file a “no-
          merit” letter detailing the nature and extent of his
          review and list each issue the petitioner wishes to
          have examined, explaining why those issues are
          meritless. The PCRA court, or an appellate court if
          the no-merit letter is filed before it, see Turner,
          supra, then must conduct its own independent
          evaluation of the record and agree with counsel that
          the petition is without merit....

          [T]his Court [has] imposed additional requirements
          on counsel that closely track the procedure for
          withdrawing on direct appeal.... [C]ounsel is required
          to contemporaneously serve upon his [or her] client
          his [or her] no-merit letter and application to
          withdraw along with a statement that if the court
          granted counsel’s withdrawal request, the client may
          proceed pro se or with a privately retained
          attorney....



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Commonwealth v. Rykard, 55 A.3d 1177, 1183–84 (Pa.Super.2012)

(some citations and footnote omitted).

      Our review of the record confirms that Mr. Gregory substantially

complied with the Turner/Finley procedural requirements to withdraw.        He

filed a motion explaining that he believed Banks’ claims lacked merit.

Moreover, he sent this motion to Banks along with a letter explaining why

his claims lack merit and informing him of his right to retain private counsel,

proceed pro se or elect not to proceed further.

      This Court has held that

            where counsel submits a petition and no-merit letter
            that do satisfy the technical demands of
            Turner/Finley, the court - trial court or this Court -
            must then conduct its own review of the merits of
            the case. If the court agrees with counsel that the
            claims are without merit, the court will permit
            counsel to withdraw and deny relief … By contrast, if
            the claims appear to have merit, the court will deny
            counsel’s request and grant relief, or at least instruct
            counsel to file an advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super.2007) (citation

omitted).   As noted above, Banks has disregarded our invitation to file a

brief in this appeal.      But because Mr. Gregory has complied with

Turner/Finley, we are required under Wrecks to overlook Banks’ inertia

and to conduct our own independent review of the record in this case.

      Our first step in reviewing the record is to consider the timeliness of

Banks’ second PCRA petition, because it implicates the jurisdiction of both

this Court and the PCRA court. Commonwealth v. Williams, 35 A.3d 44,

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52 (Pa.Super.2011).     “Pennsylvania law makes clear that no court has

jurisdiction to hear an untimely PCRA petition.”   Id. To “accord finality to

the collateral review process[,]” the PCRA “confers no authority upon this

Court to fashion ad hoc equitable exceptions to the PCRA time-bar[.]”

Commonwealth v. Watts, 23 A.3d 980, 983 (Pa.2011). “It is undisputed

that a PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final.” Commonwealth v. Hernandez, 79

A.3d 649, 651 (Pa.Super.2013); 42 Pa.C.S. § 9545(b)(1).        A judgment of

sentence “becomes final at the conclusion of direct review, including

discretionary review in the Supreme Court of the United States and the

Supreme Court of Pennsylvania, or at the expiration of time for seeking the

review.” 42 Pa.C.S. § 9545(b)(3). “This time requirement is mandatory and

jurisdictional in nature, and the court may not ignore it in order to reach the

merits of a petition.” Id. “Without jurisdiction, we simply do not have the

legal authority to address the substantive claims.”      Commonwealth v.

Seskey, 86 A.3d 237, 241 (Pa.Super.2014).

      A facially untimely petition may be received, however, where any of

the PCRA’s three limited exceptions to the PCRA time bar are met.

Hernandez, 79 A.3d at 651. These exceptions include:

            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;


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           (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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).   The petitioner maintains the burden of

pleading and proving that one of these exceptions applies. Commonwealth

v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa.2008).

     Further,

           [a] petition invoking one of these exceptions must be
           filed within sixty days of the date the claim could
           first have been presented. 42 Pa.C.S. § 9545(b)(2).
           In order to be entitled to the exceptions to the
           PCRA’s one-year filing deadline, the petitioner must
           plead and prove specific facts that demonstrate his
           claim was raised within the sixty-day time frame
           under section 9545(b)(2).

Hernandez, 79 A.3d at 651-652.

     Still another important jurisdictional principle is that a PCRA petitioner

cannot file a new PCRA petition when a prior PCRA petition is still under

review on appeal.   Commonwealth v. Ali, 10 A.3d 282, 320 (Pa.2010)

(citing Commonwealth v. Lark, 746 A.2d 585 (2000)) (“as [a] matter of

jurisdiction, [a] PCRA court cannot entertain new PCRA claims or [a] new

PCRA petition when [a] prior petition is still under review on appeal”)

(emphasis added).




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      We lack jurisdiction over this appeal because Banks filed the present

PCRA petition while his prior PCRA petition was under review in our Supreme

Court.     Ali, 10 A.3d at 320 (as a jurisdictional matter, PCRA court cannot

entertain new PCRA petition when prior petition is still under review on

appeal).

      Even had another PCRA petition not been pending, Banks’ second

PCRA petition is untimely.     Banks’ judgment of sentence became final on

December 3, 2012, the date he withdrew his petition for allowance of direct

appeal to our Supreme Court. His second PCRA petition, filed one year and

eight months after his judgment of sentence became final, is facially

untimely. Thus, Wright must plead and prove that this petition falls under

one of the exceptions to the one year statute of limitations within section

9545(b)(1)(i)-(iii). He fails to meet this burden. He does not plead or prove

that (1) government interference prevented him from filing a timely PCRA

petition raising Alleyne; (2) the facts upon which he predicates his PCRA

petition were unknown to him and could not have been ascertained within

the limitation period by the exercise of due diligence; or (3) the right that he

asserts is a constitutional right that was recognized by the Supreme Court of

the United States or the Supreme Court of Pennsylvania after expiration of

the PCRA’s limitation period and has been held by that court to apply

retroactively. Indeed, this Court has held, as a matter of law, that Alleyne




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does not apply retroactively on postconviction review. Riggle, 2015 WL at

4094427, *3-6.

      In short, because Banks filed this petition while his first PCRA was still

on appeal, and because Banks’ second PCRA petition is patently untimely

and does not satisfy any of the PCRA’s time bar exceptions, the PCRA court

properly dismissed his petition.

      Order denying PCRA relief affirmed.     Petition to withdraw as counsel

granted. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/2015




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