Com. v. Banks, D.
2725 EDA 2016
| Pa. Super. Ct. | Sep 25, 2017Background
- In 2007 Banks sold cocaine to a confidential informant in four controlled buys (Aug. 1, Aug. 8, Aug. 16, Sept. 11); police executed a search warrant on Sept. 11 and recovered cocaine, a digital scale, baggies and cash.
- Banks was convicted after a December 2008 jury trial of multiple drug offenses (delivery, PWID, criminal use of a communications facility, paraphernalia) and sentenced in March 2009 to an aggregate 21–46 years.
- Banks pursued post-conviction relief under the PCRA; earlier appellate proceedings reinstated his direct-appeal rights nunc pro tunc and resulted in this Court vacating and remanding for further PCRA proceedings on several procedural defects.
- On remand the PCRA court corrected RRRI credit, recharacterized restitution for buy money as prosecution costs, appointed new counsel, held a resentencing, and ultimately dismissed Banks’s pro se and counseled PCRA petitions on August 2, 2016.
- Banks appealed pro se, raising eight issues including merger of offenses, ineffective assistance for failing to subpoena witnesses/quash complaints, prior record score/time-credit, Alleyne-based illegality, and recusal.
- The Superior Court affirmed the PCRA court: it rejected merger, found no ineffective assistance, held discretionary-sentencing challenges noncognizable or waived, denied time-credit/EHM relief, rejected Alleyne relief as not retroactive, and found the recusal order a nullity due to lack of jurisdiction.
Issues
| Issue | Banks' Argument | Commonwealth/PCRA Court Argument | Held |
|---|---|---|---|
| 1. Whether separate controlled buys merge for sentencing | The four transactions are part of one plan and should merge | They are four distinct criminal acts with different elements; crimes do not merge | No merger; convictions/sentences may stand separately |
| 2. Trial counsel ineffective for failing to call three witnesses present at the search | Counsel should have subpoenaed/queried three individuals whose testimony would exculpate Banks | Claim is vague, unparticularized; record shows overwhelming evidence of guilt; no prejudice shown | Ineffective-assistance claim denied for lack of specificity and prejudice |
| 3. Trial counsel ineffective for failing to quash complaints under Pa.R.Crim.P. 507 | Complaints were defective for lack of DA approval; counsel should have moved to quash | Chester County Local Rule 507 does not require DA approval for Banks’s drug offenses; Rule 507 violation does not by itself afford relief | Claim meritless; counsel not ineffective for failing to pursue frivolous motion |
| 4. Prior record score incorrectly calculated | Banks contends PRS was inaccurate | Discretionary sentencing/PRS challenges are not cognizable on PCRA; not raised properly below | Denied as noncognizable/waived under PCRA/rule 302 |
| 5. Credit for time served including electronic home monitoring (EHM) | Banks seeks credit for time on EHM as custody credit | Time on EHM is not ‘‘custody’’ under 42 Pa.C.S. § 9760 and precedent; record shows credit for actual custody periods | Denied; EHM not creditable; record shows correct credits were applied |
| 6. Court failed to consider rehabilitative and mental-health mitigation | Banks argues sentencing court ignored mitigating needs | Challenges to discretionary aspects of sentencing are not cognizable under PCRA | Denied as noncognizable/waived |
| 7. Sentence illegal under Alleyne/Newman | Banks seeks relief applying Alleyne to increase-fact sentencing | Alleyne does not apply retroactively on collateral review per Commonwealth v. Washington | Denied; Alleyne/Newman relief unavailable collateraly |
| 8. Recusal of PCRA judge | Banks alleged judge should recuse for prior involvement with similar cases | PCRA court lost jurisdiction after appeal filed; its later denial was a nullity; merits claim did not show actual bias | No relief; order was void for lack of jurisdiction and recusal allegation unsupported |
Key Cases Cited
- Commonwealth v. Ford, 44 A.3d 1190 (Pa. Super. 2012) (standard of review for PCRA dismissals)
- Commonwealth v. Jones, 942 A.2d 903 (Pa. Super. 2008) (no absolute right to evidentiary hearing on PCRA petition)
- Commonwealth v. Roney, 79 A.3d 595 (Pa. 2013) (counsel presumed effective; burden on petitioner)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-part ineffective assistance standard)
- Commonwealth v. Martz, 42 A.3d 1142 (Pa. Super. 2012) (statutory credit for time served limited to custody)
- Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (Alleyne-related decision holding certain statutory scheme unconstitutional)
- Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016) (Alleyne does not apply retroactively on collateral review)