Com. v. Benner, B.

• Court: Superior Court of Pennsylvania
• Decided: April 20, 2020
• Docket: 3463 EDA 2018
• Status: Unpublished

Opinion

J-S14021-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : BRIAN KEITH BENNER : : Appellant : No. 3463 EDA 2018

Appeal from the PCRA Order Entered November 5, 2018 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0000320-2008

BEFORE: BOWES, J., KING, J., and FORD ELLIOTT, P.J.E.

JUDGMENT ORDER BY KING, J.: FILED APRIL 20, 2020

Appellant, Brian Keith Benner, appeals from the order entered in the

Montgomery County Court of Common Pleas, which dismissed his “motion to

modify sentence,” which the court treated as an untimely petition under the

Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546. On June

23, 2008, Appellant entered an open guilty plea to ten counts of various child

pornography offenses. The court adjudicated Appellant a sexually violent

predator and sentenced him on July 7, 2009, to an aggregate 25 to 50 years’

imprisonment, with lifetime registration requirements. This Court affirmed

the judgment of sentence on August 18, 2010, and our Supreme Court denied

allowance of appeal on February 9, 2011. See Commonwealth v. Benner,

11 A.3d 1030 (Pa.Super. 2010), appeal denied, 610 Pa. 572, 17 A.3d 1250

(2011) (unpublished memorandum). J-S14021-20

On June 16, 2016, Appellant filed his first PCRA petition pro se. The

court appointed counsel, who subsequently filed a petition to withdraw and

“no-merit” letter per Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927

(1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en

banc). On October 20, 2016, the court issued Pa.R.Crim.P. 907 notice. The

court denied PCRA relief on November 16, 2016, and later let counsel

withdraw. Appellant timely filed a notice of appeal on December 16, 2016.1

While Appellant’s appeal from the denial of PCRA relief was still pending,

Appellant filed, on September 12, 2017, the current, second pro se PCRA

petition styled as a “motion to modify sentence.” On September 29, 2017,

this Court affirmed the denial of PCRA relief concerning Appellant’s prior

petition. See Commonwealth v. Benner, 178 A.3d 208 (Pa.Super. 2017)

(unpublished memorandum). Meanwhile, private counsel entered his

appearance regarding Appellant’s second PCRA petition, and filed an amended

petition. On September 7, 2018, the court issued Rule 907 notice; Appellant

responded on September 26, 2018. On November 5, 2018, the court

dismissed the second petition as untimely. Appellant timely filed a notice of

appeal on November 29, 2018. On December 18, 2018, the court ordered

Appellant to file a Pa.R.A.P. 1925(b) statement, which Appellant timely filed

on January 2, 2019.

____________________________________________

1Appellant actually filed a pro se “concise statement of errors” on that date, but the court treated the filing as a timely notice of appeal.

-2- J-S14021-20

Preliminarily, Pennsylvania law makes clear that “when an appellant's

PCRA appeal is pending before a court, a subsequent PCRA petition cannot be

filed until the resolution of review of the pending PCRA petition[.]”

Commonwealth v. Lark, 560 Pa. 487, 493, 746 A.2d 585, 588 (2000). See

also Commonwealth v. Montgomery, 181 A.3d 359, 364 (Pa.Super. 2018)

(en banc), appeal denied, 647 Pa. 570, 190 A.3d 1134 (2018) (reaffirming

that Lark precludes consideration of subsequent PCRA petition while appeal

of prior PCRA petition is still pending). This Court has explained:

A petitioner must choose either to appeal from the order denying his prior PCRA petition or to file a new PCRA petition; the petitioner cannot do both, i.e., file an appeal and also file a PCRA petition, because prevailing law requires that the subsequent petition must give way to a pending appeal from the order denying a prior petition. In other words, a petitioner who files an appeal from an order denying his prior PCRA petition must withdraw the appeal before he can pursue a subsequent PCRA petition. If the petitioner pursues the pending appeal, then the PCRA court is required under Lark to dismiss any subsequent PCRA petitions filed while that appeal is pending.

Commonwealth v. Beatty, 207 A.3d 957, 961 (Pa.Super. 2017), appeal

denied, ___ Pa. ___, 218 A.3d 850 (2019) (some internal citations and

quotation marks omitted) (emphasis in original).

Instantly, Appellant’s appeal from the denial of his first PCRA petition in

this case was still pending when he filed his second PCRA petition on

September 12, 2017. Under prevailing law, the court was required to dismiss

the current petition outright under Lark. See Lark, supra; Montgomery,

supra; Beatty, supra. Thus, dismissal of Appellant’s current PCRA petition

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was proper.2 See Commonwealth v. Kemp, 961 A.2d 1247 (Pa.Super.

2008) (en banc) (explaining this Court can affirm on any valid basis).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/20/20

2 Moreover, as the PCRA court properly noted, Appellant’s current petition is untimely. Although Appellant attempts to invoke the “new constitutional right” exception to the time-bar, relying on Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017), cert. denied, ___ U.S. ___, 138 S.Ct. 925, 200 L.Ed.2d 213 (2018), Appellant has not established that Muniz applies retroactively to untimely PCRA petitions. See 42 Pa.C.S.A. § 9545(b)(1)(iii); Commonwealth v. Murphy, 180 A.3d 402 (Pa.Super. 2018), appeal denied, ___ Pa. ___, 195 A.3d 559 (2018) (holding petitioner cannot rely on Muniz to meet timeliness exception under Section 9545(b)(1)(iii) until U.S. Supreme Court or Pennsylvania Supreme Court holds that Muniz is retroactive in untimely PCRA petitions). Thus, Appellant would not be entitled to PCRA relief in any event.

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