Com. v. Burton, S. ( 2015 )

J-S48013-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHAWN L. BURTON
Appellant No. 1467 WDA 2014
Appeal from the PCRA Order August 7, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0004017-1993
CP-02-CR-0004276-1993
BEFORE: PANELLA, J., DONOHUE, J., and WECHT, J.
JUDGMENT ORDER BY PANELLA, J. FILED OCTOBER 20, 2015
Appellant, Shawn L. Burton, appeals pro se from the PCRA court’s
August 7, 2014 order denying his serial PCRA petition. We affirm.
The PCRA court ultimately dismissed Appellant’s serial PCRA petition as
untimely; it should have dismissed the petition as premature. Appellant filed
the instant PCRA petition while an appeal was pending from the dismissal of
Appellant’s prior PCRA petition, docketed at 1459 WDA 2013. See
Commonwealth v. Burton, ___ A.3d ___, 2015 WL 5076284 (Pa. Super.,
filed August 25, 2015) (en banc). Appellant’s petition for allowance of appeal
in that case, filed on September 11, 2015, is currently pending before our
Supreme Court, docked in that Court at 367 WAL 2015.
It is well-settled that “when an appellant’s PCRA appeal is pending
before a court, a subsequent PCRA petition cannot be filed until the
J-S48013-15
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).
Thus, Appellant’s serial PCRA petition was prematurely filed and should have
been dismissed as such.1
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2015
____________________________________________
1
Appellant alleges in the current PCRA petition the newly discovered facts
exception to the PCRA timebar – apparently based upon facts different than
those alleged in his still pending petition. If Appellant chooses to pursue the
instant petition after the resolution of review of his prior petition, the
subsequent petition must 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.’” Larkin, 746 A.2d at 588 (citing
42 Pa.C.S. § 9545(b)(2)).
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