J-S05002-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                  Appellee                :
                                          :
             v.                           :
                                          :
RONALD BANKS,                             :
                                          :
                  Appellant               : No. 1123 WDA 2013

                  Appeal from the PCRA Order May 3, 2013,
                 Court of Common Pleas, Allegheny County,
             Criminal Division at No(s): CP-02-CR-0002245-1993
                        and CP-02-CR-0002533-1993

BEFORE: DONOHUE, SHOGAN and STABILE, JJ.

MEMORANDUM BY DONOHUE, J.:                        FILED JANUARY 30, 2015

       Appellant, Ronald Banks (“Banks”), appeals the order entered on May

3, 2013, in the Allegheny County Court of Common Pleas dismissing his

second petition for relief pursuant to the Post-Conviction Relief Act

(“PCRA”).1    For the reasons set forth herein, we affirm the PCRA court’s

order.

       A prior panel of this Court provided the following summary of the

relevant facts and procedural history of this case:

             [Banks] was charged with one count of homicide[FN1]
             in the shooting death of Darrell Dixon, which
             occurred on February 4, 1993. In addition, [Banks]
             was charged with two related counts of violating the
             Pennsylvania Uniform Firearms Act.[FN2] On April 19,
             1994, a jury convicted [Banks] of third-degree
             murder as well as carrying a firearm without a


1
    42 Pa.C.S.A. §§ 9541-46.
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           license. The Commonwealth gave notice of its intent
           to proceed under the mandatory sentencing
           provision of 42 Pa.C.S.A. § 9715, and sought the
           imposition of a life sentence on the murder
           conviction, due to [Banks’] prior record. Thereafter,
           [Banks] was sentenced to life imprisonment without
           parole for the third-degree murder conviction, to be
           followed by twelve to twenty-four months for his
           VFUA conviction.        This Court affirmed [Banks’]
           judgment of sentence on June 4, 1996. On June 7,
           1996, [Banks’] counsel notified [Banks] by mail of
           this Court’s decision. [Banks] did not file a petition
           for allocatur at that time.

           On March 20, 1998, [Banks] filed a pro se petition
           for leave to file a petition for allocatur nunc pro tunc
           with the Supreme Court of Pennsylvania. On June
           25, 1998, our Supreme Court denied [Banks’]
           petition for allocatur nunc pro tunc.            [Banks]
           subsequently filed a petition for post-conviction relief
           on October 21, 1998. Counsel was appointed and
           permitted to withdraw at [Banks’] request.           The
           PCRA court appointed new counsel, who filed an
           amended PCRA petition on November 28, 2000.
           Following a hearing, the PCRA court denied [Banks]
           relief by order dated March 5, 2001. [Banks] filed a
           timely appeal to this Court on March 8, 2001.
           _____________________
           [FN1]
                 18 Pa.C.S.A. § 2501.
           [FN2]
                   18 Pa.C.S.A. § 6106.

Commonwealth v. Banks, 441 WDA 2001, at 1-2 (Pa. Super. November

12, 2002) (unpublished memorandum) (footnotes included in original).

     This Court affirmed the trial court’s denial of post-conviction relief,

concluding that Banks’ petition was untimely and that he failed to prove a

statutory exception to the timeliness requirement.         Id. at 8.   Banks

thereafter filed a petition for allowance of appeal to the Pennsylvania



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Supreme    Court on December       10, 2002, which our       Supreme    Court

subsequently denied on April 14, 2003.

      On April 5, 2011, Banks filed a pro se second petition for post-

conviction relief.   On December 4, 2011, the PCRA court filed a notice of

intent to dismiss pursuant to Pa.R.Crim.P. 907, wherein the PCRA court

stated that it “never received [Banks’] PCRA from the Department of

Records and has requested that [Banks] resubmit his PCRA on two separate

occasions: June 30, 2011 and July 26, 2011.”         PCRA Court’s Notice of

Intention to Dismiss, 12/5/11. Banks filed a response to the PCRA court’s

notice of intent to dismiss on December 15, 2011.

      In his response, Banks argued that the PCRA court should not dismiss

his petition without a hearing “based on [the] court’s error of misplacing his

petition.” Banks’ Response to Notice of Intent to Dismiss, 12/15/11, at 6-7.

Banks argued that he filed his petition on October 14, 2010. In support of

his argument, Banks provided documentation of a letter sent to George F.

Matta, Clerk of Courts, which states that he enclosed one original and three

copies of his PCRA petition, and requests Mr. Matta to return a copy of it to

him. Banks also provided a cash slip dated and processed on October 14,

2010, in which Banks requested that the postage charges for legal mail

addressed to Mr. Matta, be deducted from his account.          Banks further

alleged that on May 2, 2011, he wrote to the “division Manager of

Department [] of Court [] Records [], Darlen [sic] Skosnik, requesting her to



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provide him with a single courtesy copy of his criminal docket entries listing

that will verify when his P.C.R.A. petition was filed within her office.” Id. at

2. On May 11, 2011, Banks received two copies of docket entries from Ms.

Skosnik, which reflect that his petition was filed on April 5, 2011.

      After the PCRA court informed Banks that it did not have a copy of his

petition, he attempted to contact several individuals at the department of

court records, on several occasions, in an effort to obtain a copy.         The

department of court records could not locate a copy of the petition. Banks

alleged that on August 3, 2011, Sam Smith of the department of court

records informed him that the PCRA court had possession of his petition,

despite the PCRA court’s claim that it did not have a copy of the petition.

Banks thereafter received the PCRA court’s December 4, 2011 notice of

intent to dismiss, to which Banks filed this response.

      On May 3, 2013, after receiving Banks’ response, the PCRA court

dismissed Banks’ petition without a hearing. Banks filed the instant appeal

on May 28, 2013.      On appeal, Banks raises the following issues for our

review:

            1. Whether the PCRA [c]ourt erred by dismissing the
            PCRA petition as the PCRA [c]ourt never receive[d]
            [Banks’] PCRA petition from the Department of Court
            Records and not meeting the [g]overnment
            [i]nterference exception to the PCRA time bar
            pursuant to 42 Pa.C.S.[A.] § 9545(b)(1)(ii)?

            2. Whether the PCRA [c]ourt erred by denying
            mental incapacity [Banks’] Request For Appointment



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            of Counsel in order to resubmit [Banks’] PCRA
            petition with the PCRA [c]ourt while [Banks] was and
            remained incompetent throughout the period during
            which his right to file a PCRA petition pursuant to 42
            Pa.C.S.[A.] § 9545(b)(1)(ii)?

Banks’ Brief at 4.

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court's findings of fact, and whether the PCRA

court's determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005), appeal denied, 42 A.3d 1059 (Pa. 2012)).

A PCRA petitioner must establish the claim by a preponderance of the

evidence. Commonwealth v. Gibson, 925 A.2d 167, 169 (Pa. 2007).

      In this case, the PCRA court dismissed Banks’ petition without a

hearing based on his failure to provide the court with a copy of his petition.

PCRA Court Opinion, 6/30/14, at 3. The PCRA court further concluded in its

subsequent 1925(a) opinion that Banks failed to provide anything new or

different from his first PCRA petition regarding obstruction by government

officials to overcome the untimeliness of his petition that would warrant a

different result. Id. at 3-4.

      Before reaching the merits of a petitioner’s claim, Section 9545 of the

PCRA requires that “[a]ny petition under this subchapter, including a second

or subsequent petition, shall be filed within one year of the date the

judgment becomes final.” 42 Pa.C.S.A. § 9545(b)(1). A judgment becomes



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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.A. §

9545(b)(3).

      This Court has held that the timeliness requirement of the PCRA is

“mandatory and jurisdictional in nature.”     Commonwealth v. McKeever,

947 A.2d 782, 784-85 (Pa. Super. 2008) (citing Commonwealth v. Davis,

916 A.2d 1206, 1208 (Pa. Super. 2007)). Therefore, “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.” Id.

      In reviewing the timeliness of Banks’ petition, we note that this Court

previously provided the following analysis:

              [Banks] was sentenced on May 12, 1994. This Court
              affirmed his judgment of sentence on June 4, 1996.
              On June 7, 1996, [Banks’] counsel notified [Banks]
              by mail of this Court’s decision. [Banks] did not file
              a petition for allocatur at that time. Because [Banks]
              pursued no further review, his judgment of sentence
              became final on or about July 5, 1996, upon the
              expiration of the thirty-day time period for seeking
              review with our Supreme Court. See 42 Pa.C.S.A. §
              9545(b)(3). His petition for leave to file a petition
              for allocatur nunc pro tunc, which [Banks] filed on
              March 20, 1998, and the subsequent denial of that
              petition by our Supreme Court on June 25, 1998 do
              not serve to alter the date on which [Banks’]
              judgment became final.

Banks, 441 WDA 2001, at 5.




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        Banks contends that in order to meet the timeliness requirement, he

“had to have filed his petition on or about [March 30, 2006,]” one year after

the U.S. District Court for the Western District of Pennsylvania denied his

writ of habeas corpus petition. Banks’ Brief at 12. Our Supreme Court held

in Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999), however, that the

time for filing a PCRA petition is not tolled while an appellant pursues a

federal habeas corpus remedy. Id. at 222 (“As it has been established that

the PCRA’s time restrictions are jurisdictional, we hold that the period for

filing a PCRA petition is not subject to the doctrine of equitable tolling, save

to the extent the doctrine is embraced by § 9545(b)(1)(i)-(iii).”). Thus, in

order to meet the timeliness requirements of the PCRA, we conclude that

Banks was required to file his petition by July 5, 1997.

        In this case, Banks did not file the instant PCRA petition until April 5,

2011.     Because Banks filed the petition nearly fourteen years after the

judgment of sentence became final, Banks’ petition is facially untimely.

        Nevertheless, although the timeliness requirement is mandatory and

jurisdictional, “an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is

met.”     Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super.

2013). The three exceptions to the timeliness requirement are:




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            (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.

Id. at n.1 (citing 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii)). The petition invoking

an exception “shall be filed within 60 days of the date the claim could have

been presented.” Commonwealth v. Davis, 86 A.3d 883, 888 (Pa. Super.

2014) (citing 42 Pa.C.S.A. § 9545(b)(2)).

      In this case, Banks asserts that his petition satisfies the first two

exceptions to the timeliness requirement set forth at 42 Pa.C.S.A. §

9545(b)(1)(i)-(ii). First, Banks asserts that his right to raise his PCRA claims

was obstructed by government officials, specifically, the clerk of department

of court records.   Banks argues that the clerk of the department of court

records lost his PCRA petition, which he filed on October 14, 2010, and

thereby caused his petition to be untimely. Banks’ Brief at 18.

      Even accepting Banks’ argument that he filed the instant PCRA petition

on October 14, 2010 and that government officials interfered by losing his

second PCRA petition, Banks does not assert that that government



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interference prevented him from filing a petition by July 5, 1997 in

accordance with the timing requirements. Instead, Banks’ brief consists of

his argument that government interference prevented him from filing his

petition on October 14, 2010, nearly fourteen years after the deadline for

filing a petition. Accordingly, Banks has not proven that “the failure to raise

the claim previously was the result of interference by government officials,”

and therefore, fails to satisfy the        exception under 42 Pa.C.S.A. §

9545(b)(1)(i).

      Banks also argues that because of his mental incompetence, the

exception under 42 Pa.C.S.A. § 9545(b)(1)(ii) should apply. This Court has

established that

            [t]he timeliness exception set forth in Section
            9545(b)(1)(ii) requires a petitioner to demonstrate
            that he did not know the facts upon which he based
            his petition and could not have learned those facts
            earlier by the exercise of due diligence.        Due
            diligence demands that the petitioner take
            reasonable steps to protect his own interests. A
            petitioner must explain why he could not have
            obtained the new fact(s) earlier with the exercise of
            due diligence. This rule is strictly enforced.

Commonwealth v. Robinson, 12 A.3d 477, 480 (Pa. Super. 2011)

(citation omitted).

      Banks asserts that on March 15, 2001, state correctional officials

transferred him from S.C.I.-Frackville to the Long Term Segregation Unit

(“LTSU”) at S.C.I.-Pittsburgh. Banks’ Brief at 21. As a result of his transfer




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to the LTSU, Banks argues that he remained in solitary confinement until

April 5, 2010, at which time he was reassigned to the Special Needs Unit

(“SNU”).    Id. at 21, 24.      Banks further states that solitary confinement

caused     his   mental   illness   symptoms   relating   to   his   diagnosis   of

schizoaffective disorder to worsen and his mental state to deteriorate. Id.

at 21, 24.       Due to his mental health condition, Banks “could offer no

participation in identifying his issues, outlining his issues, preparing, drafting

and filing a PCRA petition due to his ongoing active psychological

symptoms[.]” Id. at 25. Thus, Banks argues that the second exception to

the PCRA jurisdictional time requirement applies in this case.2

      We find Banks’ argument to be without merit. As this Court previously

held in Commonwealth v. Monaco, 996 A.2d 1076 (Pa. Super. 2010),

             Only under a very limited circumstance has the
             Supreme Court ever allowed a form of mental illness
             or incompetence to excuse an otherwise untimely
             PCRA petition. See, e.g., Commonwealth v. Cruz,
             852 A.2d 287, 294-97 (Pa. 2004) (holding
             defendant’s claims may fall under after discovered
             facts exception to PCRA timeliness requirements
             where his mental incompetence prevented defendant
             from timely raising or communicating claims). But
             see [Commonwealth v.] Sam, [952 A.2d 565, 576-
             77    (Pa.  2008)]    and   its companion      case
             Commonwealth v. Watson, 952 A.2d 541 (Pa.


2
    We note that Banks also avers that his confinement in the LTSU was
unlawful and that the unlawful confinement constitutes government
interference that prevented him from timely filing an appeal. Banks’ Brief at
12. Given our determination that the deadline for filing a petition was July
5, 1997, we conclude that Banks’ argument is meritless, as his confinement
in the LTSU began in 2001, four years after the deadline.


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            2008)      (holding    court   erred   in    denying
            Commonwealth’s         request     for    involuntary
            administration of antipsychotic medication to restore
            death-row inmate competency so that he could
            participate in timely instituted post-conviction
            proceedings). Thus, the general rule remains that
            mental illness or psychological condition, absent
            more, will not serve as an exception to the PCRA’s
            jurisdictional time requirements.

Id. at 1080-81.

      In this case, Banks “avers that when his ‘mental capacity [permanent]

deteriorated in the LTSU[](e.g., “solitary confinement”) that he lose [sic] all

sense of temporal awareness -- which does explain why [he] didn’t real[l]y

have the sense of time that would be necessary to meet [the section

9545(b)(1)] deadline.” Id. at 29. Banks further avers that had the PCRA

court held a hearing, an expert witness could have testified “on the affected

mind of prisoners in solitary confinement, and [he would have offered

testimony] regarding his mental state ‘back in 2001 and 2008[.]’” Id.

      Banks, in his brief, consistently refers to his mental incapacity

beginning in 2001 and the effects that his confinement in the LTSU had on

his mental state. As previously discussed, however, Banks’ argument that

the jurisdictional time limit for filing an appeal was March 30, 2006, is futile.

Thus, Banks’ arguments concerning his mental state in 2001 and 2008 fail to

demonstrate that his mental incompetence prevented him from timely filing

a PCRA petition by the deadline of July 5, 1997, and therefore, fail to satisfy

the exception under 42 Pa.C.S.A. § 9545(b)(1)(ii).



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      Because of Banks’ failure to prove that at least one of the three

timeliness exceptions in section 9545 applies to his PCRA petition, his

petition is untimely and must be dismissed.               We note that although our

reasoning slightly differs from that of the PCRA court, this Court may affirm

the   PCRA   court’s    decision   on   any      basis.   See   Commonwealth     v.

Charleston, 94 A.3d 1012, 1018 (Pa. Super. 2014) (citation omitted).

Accordingly, we conclude that the PCRA court properly dismissed Banks’

petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/30/2015




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