J-S26040-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________

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 nomerit 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 “nomerit” 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