Com. v. Frank, R.

• Court: Superior Court of Pennsylvania
• Decided: July 18, 2017
• Docket: Com. v. Frank, R. No. 1662 MDA 2016
• Status: Unpublished

Opinion

J-S30011-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

RONALD FRANK,

Appellant No. 1662 MDA 2016

Appeal from the PCRA Order September 12, 2016 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP-21-CR-0002091-2009, CP-21-CR-0002094- 2009

BEFORE: SHOGAN, RANSOM, and MUSMANNO, JJ.

JUDGMENT ORDER BY SHOGAN, J.: FILED JULY 18, 2017

Appellant, Ronald Frank, appeals from the order entered in the

Cumberland County Court of Common Pleas dismissing his second petition

filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-

9546. Following a bench trial on stipulated facts, Appellant was found guilty

of numerous sexual offenses against four minor male victims he met while

working as a crossing guard at a middle school. The court sentenced

Appellant to an aggregate term of imprisonment of fifteen to thirty years,

and this Court affirmed the judgment of sentence. Commonwealth v.

Frank, 26 A.3d 1207, 1446 MDA 2010 (Pa. Super. 2011) (unpublished

memorandum). J-S30011-17

Appellant filed a pro se PCRA petition on April 22, 2014, and counsel

was appointed. The PCRA court dismissed the petition as untimely on

November 6, 2014. This Court affirmed on February 3, 2016, concluding

that the petition was untimely and no exception to the time-bar was pleaded

or proven. Commonwealth v. Frank, 141 A.3d 586 (Pa. Super. 2016)

(unpublished memorandum). Appellant filed a petition for allowance of

appeal on February 22, 2016.

While the petition for allowance of appeal was pending in our Supreme

Court, Appellant filed the instant second pro se PCRA petition on July 24,

2016. The PCRA court dismissed the petition on September 12, 2016.1

Appellant filed the instant appeal on October 2, 2016, a concise statement of

errors pursuant to Pa.R.A.P. 1925 on October 27, 2016, and the PCRA court

filed a memorandum opinion on November 30, 2016.

We conclude the PCRA court properly dismissed Appellant’s July 24,

2016 petition. “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.”

Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000); see also

____________________________________________

1 The Pennsylvania Supreme Court subsequently denied Appellant’s petition for allowance of appeal on September 28, 2016. Commonwealth v. Frank, 158 A.3d 86, 346 MAL 2016 (Pa. 2016).

-2- J-S30011-17

Commonwealth v. Porter, 35 A.3d 4, 14 (Pa. 2012) (Lark precludes PCRA

court from entertaining a new PCRA petition when a prior petition remains

under review on appeal).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/18/2017

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