J-A14038-15

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

DENNIS JEROME BANKS,

 Appellant

:

:

:

:

:

:

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 1114 MDA 2014

Appeal from the PCRA Order Entered June 9, 2014

in the Court of Common Pleas of Adams County,

Criminal Division, at No(s): CP-01-CR-0000042-2006

and CP-01-CR-0000049-2006

BEFORE: BENDER, P.J.E., JENKINS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED JULY 28, 2015

Dennis Jerome Banks (Appellant) appeals from the June 9, 20141

order which dismissed his petition filed pursuant to the Post Conviction Relief 

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

In 2007, following his convictions of numerous drug-related crimes at 

the above two docket numbers, Appellant was sentenced to an aggregate 

term of 101⁄2 to 21 years of imprisonment.2 This Court denied Appellant 

relief on direct appeal, and his judgment of sentence became final in 2009 

after our Supreme Court denied his petition for allowance of appeal. 

 

1 The order is dated June 5 and was entered on the docket on June 6; 

however, the docket reflects that the order was not mailed to Appellant until 

June 9, 2014.

2 This included application of mandatory minimum sentences pursuant to 18 

Pa.C.S. § 7508(a)(3)(i). 
J-A14038-15

- 2 -

Commonwealth v. Banks, 954 A.2d 31 (Pa. Super. 2008) (unpublished 

memorandum), appeal denied, 964 A.2d 893 (Pa. 2009). 

Appellant’s first, timely-filed PCRA petition resulted in no relief. 

Appellant filed the petition that is the subject of the instant appeal on March 

17, 2014. Therein, he claimed that he is entitled to relief in the form of 

resentencing because his sentence is illegal under Alleyne v. United 

States, ––– U.S. –––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (holding 

that a fact which triggers the imposition of a mandatory minimum sentence 

is an element of the crime and must, therefore, be determined beyond a 

reasonable doubt by a jury). Motion for Post Conviction Collateral Relief, 

3/17/2014, at 3. 

The PCRA court issued notice of its intent to dismiss the petition 

without a hearing, to which Appellant filed a response in opposition. On 

June 9, 2014, the PCRA court entered an order dismissing Appellant’s 

petition based upon lack of jurisdiction. Appellant timely filed a notice of 

appeal, and both Appellant and the PCRA court complied with Pa.R.A.P. 

1925. On appeal, Appellant claims that the PCRA court erred in determining 

that his petition was untimely filed.

The timeliness of a post-conviction petition is jurisdictional. See, 

e.g., Commonwealth v. Lewis, 63 A.3d 1274, 1280-81 (Pa. Super. 2013) 

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)) (“[I]f 
J-A14038-15

- 3 -

a PCRA petition is untimely, neither this Court nor the [PCRA] court has 

jurisdiction over the petition. Without jurisdiction, we simply do not have 

the legal authority to address the substantive claims.”). 

Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment 

of sentence is final unless the petition alleges, and the petitioner proves, 

that an exception to the time for filing the petition is met, and that the claim 

was raised within 60 days of the date on which it became available. 42 

Pa.C.S. § 9545(b) and (c). 

It is clear that Appellant’s 2014 petition is facially untimely: his 

judgment of sentence became final in 2009. However, Appellant alleges that 

his petition satisfies the following timeliness exception: “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)(iii). 

Appellant’s argument is unavailing. As the PCRA court aptly noted, the 

exception does not apply because Appellant’s petition was not filed within 60 

days of the Alleyne decision. PCRA Court Opinion, 9/3/2014, at 4; see 

also Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa. Super. 2007) (“With 

regard to an after-recognized constitutional right, this Court has held that 
J-A14038-15

- 4 -

the sixty-day period begins to run upon the date of the underlying judicial 

decision.”). Furthermore, 

[e]ven assuming that Alleyne did announce a new 

constitutional right, neither our Supreme Court, nor the United 

States Supreme Court has held that Alleyne is to be applied 

retroactively to cases in which the judgment of sentence had 

become final. This is fatal to Appellant’s argument regarding the 

PCRA time-bar. 

Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014). 

Accordingly, Appellant failed to establish the applicability of a 

timeliness exception, and the PCRA court properly dismissed the petition for 

lack of jurisdiction.3

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/28/2015

 

3 As the PCRA court noted in its order dismissing Appellant’s petition, the 

timeliness exception of 42 Pa.C.S. § 9545(b)(1)(iii) may be available to 

Appellant in the future if an appropriate court holds that the Alleyne

decision is a new right with retroactive application. Order, 6/9/2014.