Com. v. McGinnis, V.

Opinion

J-S96037-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

VERNON EARL MCGINNIS

Appellant No. 979 WDA 2016

Appeal from the PCRA Order Dated June 8, 2016 In the Court of Common Pleas of Armstrong County Criminal Division at No(s): CP-03-CR-0000547-1996

BEFORE: BENDER, P.J.E., BOWES, J., and SOLANO, J.

JUDGMENT ORDER BY SOLANO, J.: FILED MARCH 14, 2017

Pro se Appellant, Vernon Earl McGinnis, appeals from the order

dismissing his ninth Post Conviction Relief Act (“PCRA”) 1 petition as

untimely. Appellant contends that although he was eighteen-years old when

he committed, among other crimes, first-degree murder, he is entitled to

relief under Miller v. Alabama, 132 S. Ct. 2455 (June 25, 2012), and

Montgomery v. Louisiana, 136 S. Ct. 718 (Jan. 25, 2016). We quash.

We need not set forth the facts and lengthy procedural history. Of

note, however, is that this Court dismissed Appellant’s eighth PCRA petition

on January 29, 2016. Commonwealth v. McGinnis, 782 WDA 2015 (Pa.

Super., Jan. 29, 2016). On February 11, 2016, this Court docketed

Appellant’s pro se petition for reargument. This Court had not yet ruled on ____________________________________________

1 42 Pa.C.S. §§ 9541-9546. J-S96037-16

Appellant’s reargument petition when, on March 22, 2016, the PCRA court

docketed pro se Appellant’s ninth PCRA petition. With respect to Appellant’s

eighth petition, this Court denied Appellant’s reargument petition on April 8,

2016. Appellant filed a pro se petition for allowance of appeal on May 6,

2016, which our Supreme Court denied on October 13, 2016.

Meanwhile, the PCRA court was addressing Appellant’s ninth PCRA

petition. On May 12, 2016, the PCRA court issued a Pa.R.Crim.P. 907 notice,

and the court docketed Appellant’s opposition to the notice on May 31, 2016.

On June 8, 2016, the PCRA court dismissed Appellant’s ninth PCRA petition

as untimely, and Appellant timely appealed.

As a prefatory matter, we recognize our Supreme Court’s holding that

a subsequent PCRA petition cannot be filed until final resolution of the prior

petition:

We now hold 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. If the subsequent petition is not filed within one year of the date when the judgment became final, then the petitioner must plead and prove that one of the three exceptions to the time bar under 42 Pa.C.S. § 9545(b)(1) applies. The subsequent petition must also be filed within sixty days of the date of the order which finally resolves the previous PCRA petition, because this is the first “date the claim could have been presented.”

Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (footnote and

citation omitted).

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Instantly, Appellant, on February 11, 2016, filed a petition for

reargument with this Court from our order affirming the dismissal of his

eighth PCRA petition. Before this Court resolved Appellant’s reargument

petition (on April 8, 2016), Appellant decided to file his ninth PCRA petition,

which the PCRA court docketed on March 22, 2016. Under Lark, the PCRA

court should not have accepted Appellant’s ninth PCRA petition for filing

during the pendency of Appellant’s appeal of his eighth PCRA petition. See

Lark, 746 A.2d at 588. The PCRA court had no jurisdiction to adjudicate

Appellant’s ninth PCRA petition until the appellate courts finally disposed of

Appellant’s appeal regarding his eighth petition. See id. Because our

Supreme Court did not deny Appellant’s petition for allowance of appeal

regarding his eighth PCRA petition until October 13, 2016 — several months

after Appellant appealed from the dismissal of his ninth PCRA petition to this

Court — we vacate the order below and quash.2

Order vacated. Appeal quashed.

____________________________________________

2 We observe that Appellant does not qualify for application of Miller because he was not a juvenile when he committed the murder; rather, he was eighteen-years old. See Miller, 132 S. Ct. at 2460 (holding only that mandatory life-without-parole sentences for individuals under eighteen at the time of their crimes are unconstitutional).

-3- J-S96037-16

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/14/2017

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