Com. v. Dixon, T.

• Court: Superior Court of Pennsylvania
• Decided: February 5, 2015
• Docket: 930 WDA 2014
• Status: Unpublished

Opinion

J-S76021-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

TEREL DARNELL DIXON

Appellant No. 930 WDA 2014

Appeal from the Order May 22, 2014 In the Court of Common Pleas of Beaver County Criminal Division at No(s): CP-04-CR-0001027-2010

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OLSON, J.

JUDGMENT ORDER BY PANELLA, J. FILED FEBRUARY 5, 2015

Appellant, Terel Darnell Dixon, appeals pro se from the order entered

May 22, 2014, by the Honorable Kim Tesla, Court of Common Pleas of

Beaver County, which denied his “Motion to Compel to the President Judge

of the Court.” We affirm.1

On August 5, 2011, Dixon entered an open guilty plea to one count of

third-degree murder. On August 12, 2011, the trial court sentenced Dixon

to 12 to 30 years’ imprisonment. Dixon did not file a post-sentence motion

or direct appeal. Dixon filed a timely pro se PCRA petition. The PCRA court

appointed counsel, who filed an amended PCRA petition. Following an

evidentiary hearing, the PCRA counsel entered an order dismissing Dixon’s ____________________________________________

1 Dixon has filed with this Court a Motion to Compel the Commonwealth’s response to his Appellate Brief. This motion is denied. J-S76021-14

PCRA petition. On appeal, this Court affirmed the order denying PCRA relief,

and the Pennsylvania Supreme Court denied allocatur on May 6, 2014. See

Commonwealth v. Dixon, 1987 WDA 2012 (Pa. Super., filed Aug. 20,

2013) (mem. op.), allocatur denied.

On May 13, 2014, Dixon filed a pro se Motion to Compel,2 in which he

alleged that he had submitted for filing a PCRA petition alleging ineffective

assistance of counsel on December 18, 2013, but that the petition was not

reflected on the court’s docket. Dixon requested that the court enter an

order compelling the clerk of courts to file the petition, and the

Commonwealth to respond to same. See Motion to Compel, 5/13/14. By

letter dated May 14, 2014, the Beaver County Clerk of Courts office informed

Dixon that it had not received a PCRA petition for filing on December 18,

2013. On May 22, 2014, the lower court entered an order denying Dixon’s

motion, on the basis that no such PCRA petition existed of record. This

timely appeal followed.

Our review of the record confirms that, contrary to Dixon’s assertions

otherwise, a PCRA petition was not received by the Beaver County Clerk of

Courts office on or about December 18, 2013.3 On this basis alone, we ____________________________________________

2 Dixon was permitted to proceed in this matter pro se following a Grazier hearing held on May 1, 2013. 3 Dixon attached to his motion a copy of his Integrated Offender Case Management System Monthly Account Statement, reflecting a withdrawal of $1.92 for postage on December 18, 2013. There is still no indication on the (Footnote Continued Next Page)

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affirm the court’s order denying Dixon’s motion to compel, as there is simply

no petition of record to compel either the filing of or a response thereto. We

further note that even if the PCRA petition had been properly filed on

December 18, 2013, it would have been dismissed. At that time, the

resolution of Dixon’s first PCRA petition was still pending on appeal. It is

well-settled that “a subsequent PCRA petition cannot be filed until the

resolution of review of a pending PCRA petition by highest state court in

which review is sought, or at the expiration of time for seeking such review.”

Commonwealth v. Green, 14 A.3d 114, 116 n.2 (Pa. Super. 2011)

(citation omitted).

Order affirmed. Motion to compel denied. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/5/2015

_______________________ (Footnote Continued)

docket that a PCRA petition was received for filing around that date. Notably, a copy of the PCRA petition is not attached to Dixon’s motion.

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