Com. v. Henkel, J. ( 2015 )

J-S13024-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JARED HENKEL
Appellant No. 1022 WDA 2014
Appeal from the PCRA Order June 4, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0005481-2002
CP-02-CR-0005955-2002
CP-02-CR-0005956-2002
BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.
JUDGMENT ORDER BY MUNDY, J.: FILED APRIL 21, 2015
Appellant, Jared Henkel, appeals from the June 4, 2014 order,
dismissing as untimely his second petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful
review, we affirm.
On October 21, 2003, a jury convicted Appellant of two counts of
kidnapping and one count each of second-degree murder, robbery,
aggravated assault, and simple assault.1 On January 22, 2004, the trial
court imposed an aggregate sentence of life imprisonment without the
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1
18 Pa.C.S.A. §§ 2901(a), 2502(b), 3701(a)(1), 2702(a)(1), and
2701(a)(1), respectively.
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possibility of parole. On November 14, 2007, this Court affirmed Appellant’s
judgment of sentence, and our Supreme Court denied his petition for
allowance of appeal on August 25, 2008. Commonwealth v. Henkel, 938
A.2d 433 (Pa. Super 2007), appeal denied, 955 A.2d 356 (Pa. 2008).
Appellant did not file a petition for a writ of certiorari with the United States
Supreme Court. As a result, his judgment of sentence became final on
November 24, 2008. See generally 42 Pa.C.S.A. § 9545(b)(3); U.S. S. Ct.
R. 13(1). Thereafter, Appellant filed his first, timely PCRA petition, which
the PCRA court denied on February 17, 2012. On April 11, 2014, an en banc
panel of this Court affirmed the denial of Appellant’s PCRA petition, and our
Supreme Court denied Appellant’s petition for allowance of appeal on
October 21, 2014. Commonwealth v. Henkel, 90 A.3d 16 (Pa. Super.
2014) (en banc), appeal denied, 101 A.3d 785 (Pa. 2014).
Appellant filed the instant petition on May 7, 2014, which was during
the pendency of the appeal period of his first PCRA petition. “[W]hen 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). On May 8, 2014, Appellant filed his petition
for allowance of appeal with our Supreme Court from this Court’s April 11,
2014 decision affirming the denial of his first PCRA. Thus, on June 4, 2014,
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at the time the PCRA court dismissed his second PCRA petition as untimely,
Appellant’s petition for allowance of appeal regarding his first PCRA petition
was still pending with our Supreme Court. Accordingly, the second PCRA
petition was premature under Lark. Therefore, the PCRA court correctly
determined that it was prevented from addressing the merits of Appellant’s
second PCRA petition.2
Accordingly, we affirm the June 4, 2014 order dismissing Appellant’s
PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/21/2015
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2
To the extent that our analysis differs from the PCRA court’s, we note that
we may affirm the PCRA court on any legal basis supported by the record.
Commonwealth v. Doty, 48 A.3d 451, 456 (Pa. Super. 2012).
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