Com. v. Madison, L. ( 2021 )

J-S07035-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LAWRENCE J. MADISON :
:
Appellant : No. 820 WDA 2020
Appeal from the PCRA Order Entered July 21, 2020
In the Court of Common Pleas of Washington County
Criminal Division at No(s): CP-63-CR-0000495-2016
BEFORE: SHOGAN, J., DUBOW, J., and KING, J.
MEMORANDUM BY KING, J.: DATE: April 29, 2021
Appellant, Lawrence J. Madison, appeals pro se from the order entered
in the Washington County Court of Common Pleas, which dismissed as
untimely his second petition filed under the Post Conviction Relief Act
(“PCRA”).1 We affirm.
The relevant facts and procedural history of this case are as follows. On
December 16, 2016, Appellant entered a negotiated guilty plea to possession
of a firearm prohibited, firearms not to be carried without a license, and
receiving stolen property. That same day, the court sentenced Appellant to
the negotiated aggregate sentence of 5 to 10 years of incarceration. Although
Appellant sought, unsuccessfully, to withdraw his guilty plea, he did not seek
____________________________________________
1 42 Pa.C.S.A. §§ 9541-9546.
J-S07035-21
direct review of his sentence.
On September 13, 2018, Appellant filed his first PCRA petition, alleging
ineffective assistance of counsel, namely, counsel’s alleged failure to conduct
pretrial investigation. (See PCRA Petition, 9/13/18, at 2-3). The court
appointed counsel to assist Appellant with litigating his first PCRA petition, but
counsel ultimately filed a no-merit brief and motion to withdraw pursuant to
Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). After
granting counsel’s petition, the court denied PCRA relief. This Court affirmed
the denial of PCRA relief on December 12, 2019. See Commonwealth v.
Madison, 225 A.3d 1154 (Pa.Super. 2019) (unpublished memorandum).
Thereafter, Appellant filed a petition for allowance of appeal to the
Pennsylvania Supreme Court.
While his petition for allowance of appeal was still pending, Appellant
filed the instant PCRA petition on February 20, 2020, alleging various grounds
for relief, including “after discovered evidence,” ineffective assistance of
counsel, and “newly discovered” knowledge of the United States Supreme
Court’s decision in Garza v. Idaho, ___ U.S. ___, 139 S. Ct. 738, 203 L. Ed. 2d
77 (2019). (See PCRA Petition, 2/20/20, at 1-12).
On June 1, 2020, Appellant’s petition for allowance of appeal was
denied. See Commonwealth v. Madison, ___ Pa. ___, 235 A.3d 266 (2020)
(per curiam). On June 30, 2020, the PCRA court issued Pa.R.Crim.P. 907
-2-
J-S07035-21
notice of its intent to dismiss the petition without a hearing. On July 21, 2020,
the court dismissed the petition as untimely. On August 4, 2020, Appellant
timely filed a notice of appeal. Appellant filed a voluntary Pa.R.A.P. 1925(b)
concise statement on September 23, 2020.
Appellant now raises the following issues for our review:
Whether the [PCRA] court erred when it found that
Appellant’s second PCRA petition was untimely and
dismissed the petition without a hearing?
Whether Appellant’s trial counsel(s) rendered ineffective
assistance, which caused Appellant to enter an involuntary
guilty plea by way of inducement?
(Appellant’s Brief at 3).
As a prefatory matter,
Pennsylvania law makes clear the trial court has no
jurisdiction to consider a subsequent PCRA petition while an
appeal from the denial of the petitioner’s prior PCRA petition
in the same case is still pending on appeal.
Commonwealth v. Lark,2 560 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).
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.”
Commonwealth v. Zeigler, 148 A.3d 849, 852 (Pa.Super.
2016). In other words, a petitioner who files an appeal from
____________________________________________
2Lark was overruled on other grounds by Commonwealth v. Small, ___
Pa. ___, 238 A.3d 1267, 1281 (2020).
-3-
J-S07035-21
an order denying his prior PCRA petition must withdraw the
appeal before he can pursue a subsequent PCRA petition.
Id. 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. Lark, supra.
Commonwealth v. Beatty, 207 A.3d 957, 961 (Pa.Super. 2019).
Instantly, at the time Appellant filed the instant PCRA petition, his
petition for allowance of appeal to the Supreme Court regarding the denial of
his first PCRA petition, was still pending. Consequently, the PCRA court lacked
jurisdiction to consider the petition and should have dismissed it outright
pursuant to Lark. See id. Accordingly, we affirm the denial of relief on
Appellant’s current petition, albeit on other grounds. See Commonwealth
v. Reese, 31 A.3d 708, 727 (Pa.Super. 2011) (en banc) (stating appellate
court may affirm on any basis as long as ultimate decision is correct).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/29/2021
-4-