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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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