Com. v. Boyd, F.

Opinion

J-S14003-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : FRANCIS J. BOYD : : Appellant : No. 2599 EDA 2017 :

Appeal from the PCRA Order July 26, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0605971-1976

BEFORE: OTT, J., McLAUGHLIN, J., and RANSOM, J.

MEMORANDUM BY OTT, J.: FILED MAY 31, 2018

Francis J. Boyd appeals, pro se, from the order entered July 26, 2017,

in the Philadelphia County Court of Common Pleas denying his serial PCRA

petition.1 Boyd seeks relief from the judgment of sentence of an aggregate

term of life imprisonment imposed on February 9, 1977, following his jury

conviction of second-degree murder and related charges. On appeal, he

argues the PCRA court erred in dismissing his petition, which he claims is an

amendment to a prior petition filed in 2008, and subsequently amended in

2010, because he is subject to an illegal sentence. We affirm.

____________________________________________

 Retired Senior Judge assigned to the Superior Court.

1 See Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. J-S14003-18

Since his judgment of sentence was affirmed by this Court in October of

1979,2 Boyd has filed numerous petitions for collateral relief. Relevant to this

appeal, on April 30, 2012, he filed a pro se PCRA petition, which he

subsequently amended four times. Ultimately, the PCRA court denied relief

by order dated May 30, 2017, and Boyd filed a timely notice of appeal on June

6, 2017.3 Thereafter, on June 16, 2017, Boyd filed the instant PCRA petition,

which, as noted above, he averred was an amendment to a prior petition filed

in 2008, and amended in 2010. The PCRA court dismissed the petition on July

26, 2017, due the pending appeal from its May 30th order. This timely appeal

follows.

In Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000), the

Pennsylvania Supreme Court held “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 by the highest state court in

which review is sought, or upon the expiration of the time for seeking such

review.” Here, Boyd filed a pro se PCRA petition on June 16, 2017, while the

appeal from his prior petition was (and still is) pending in this Court. See

2 See Commonwealth v. Boyd, 412 A.2d 588 (Pa. Super. 1979).

3 Although the appeal is date-stamped June 22, 2017, the certificate of service attached to the notice avers that Boyd submitted it to the prison authorities for mailing on June 6, 2017. Under the “‘prisoner mailbox rule,’ a document is deemed filed when placed in the hands of prison authorities for mailing.” Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 (2006). Accordingly, we consider Boyd’s notice of appeal to have been filed on June 6, 2017.

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2104 EDA 2017. Therefore, the PCRA court properly determined it had no

jurisdiction to review the June 16th petition.

Furthermore, we reject Boyd’s argument that his June 16, 2017, petition

was simply an amendment of a petition he originally filed in 2008, which the

PCRA court never formally dismissed. See Boyd’s Brief at 2. We recognize

that the Lark Court stated its holding would “not preclude a trial court from

granting leave to amend a PCRA petition that is currently pending before

that court.” Lark, supra. 746 A.2d at 588 n.2 (emphasis supplied). Indeed,

Boyd maintains because the court never ruled upon his 2008 petition, that

petition is still pending. We disagree.

First, we note Boyd has filed numerous petitions since that time, all of

which the PCRA court denied. Therefore, his claim that the present filing is

an “amendment” of the 2008 petition is specious. Second, at the time Boyd

filed the petition on July 31, 2008 (followed by an amendment in February of

2010), an appeal from a prior petition was pending in this Court.4 See 2184

EDA 2008. That ruling was later affirmed by this Court on October 27, 2010.

See Commonwealth v. Boyd, 15 A.3d 543 (Pa. Super. 2010) (unpublished

memorandum). Accordingly, like here, at the time the 2008 petition (and

accompanying amendment) was filed, the PCRA court had no jurisdiction to

4The docket reflects that on July 17, 2008, Boyd filed a notice of appeal from an order of the PCRA court entered June 18, 2008.

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consider it. See Lark, supra.5 The fact the PCRA court apparently neglected

to enter a final order after issuing Pa.R.Crim.P. 907 notice of its intent to

dismiss the petition on July 12, 2010, is of no moment.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/31/18

5 We note this Court’s recent en banc decision in Commonwealth v. Montgomery, ___ A.3d ___, 2018 PA Super 54 (Pa. Super. 2018) (en banc), does not compel a different result. In that case, our Court carved out an exception to Lark, supra, and held “PCRA courts are not jurisdictionally barred from considering multiple PCRA petitions related to the same judgment of sentence at the same time[.]” Montgomery, supra, 2018 PA Super 54, at 10 (emphasis supplied). However, the Montgomery panel explained that Lark still applies in cases such as the one before us, and “precludes consideration of a subsequent petition from the time a PCRA order is appealed until no further review of that order is possible.” Id. at 8.

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