Com. v. Reese, D. ( 2018 )

J-S67025-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DARRELL REESE :
:
Appellant : No. 601 EDA 2018
Appeal from the PCRA Order February 2, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0100571-1998
BEFORE: OTT, J., NICHOLS, J., and STRASSBURGER, J.*
MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 14, 2018
Appellant Darrell Reese appeals pro se from the order dismissing as
premature his sixth petition filed under the Post Conviction Relief Act (PCRA),
42 Pa.C.S. §§ 9541-9546. We affirm.
The PCRA court summarized the relevant facts and procedural history
of this case as follows:
On November 5, 1998, following a jury trial, [Appellant] was
convicted of aggravated assault, robbery, criminal conspiracy, and
possessing an instrument of crime, while the jury was hung on the
first-degree murder bill. On September 27, 1999, [Appellant],
following a re-trial on the murder bill, was found guilty by a jury
of first-degree murder. On September 28, 1999, following a
penalty phase, [Appellant] was sentenced to life imprisonment for
the murder bill and lesser terms of incarceration for the remaining
convictions. On July 10, 2001, following a direct appeal, the
Superior Court affirmed the judgment of sentence. The
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* Retired Senior Judge assigned to the Superior Court.
J-S67025-18
Pennsylvania Supreme Court denied allocatur on December 14,
2001.
On August 13, 2002, [Appellant] filed his first pro se petition for
collateral relief under the former provisions of the PCRA. Counsel
was appointed and subsequently filed a “no merit” letter pursuant
to Turner/Finley.[1] [Appellant]’s PCRA petition was formally
dismissed on March 29, 2004. On August 22, 2005, the Superior
Court affirmed the dismissal order. The Pennsylvania Supreme
Court denied allocatur on May 31, 2006.
On November 21, 2007, [Appellant] filed his second pro se petition
under the Post Conviction Relief Act. [Appellant’s] PCRA petition
was dismissed on July 20, 2009. On July 8, 2010, the Superior
Court affirmed the dismissal order. On January 5, 2011, the
Pennsylvania Supreme Court denied allocatur.
On January 20, 2011, [Appellant] filed his third pro se PCRA
petition. [Appellant’s] PCRA petition was dismissed as untimely
on September 21, 2011. On May 23, 2012, the Superior Court
affirmed the dismissal. On November 20, 2012, the Pennsylvania
Supreme Court denied allocatur.
On January 23, 2013, [Appellant] filed his fourth pro se PCRA
petition. [Appellant’s] PCRA petition was dismissed as untimely
on April 1, 2014. On June 5, 2015, the Superior Court affirmed
the dismissal. On November 16, 2015, the Pennsylvania Supreme
Court denied allocatur. On March 21, 2016, [Appellant] filed his
fifth pro se PCRA petition. On September 22, 2016, the PCRA
court dismissed his petition as untimely. [Appellant] timely filed
a notice of appeal with the Superior Court (3278 EDA 2016). On
October 18, 2017, the Superior Court affirmed the dismissal. On
November 14, 2017, [Appellant] filed for allowance of appeal with
the Pennsylvania Supreme Court, which remains pending (583
EAL 2017).
While the appeal was pending, [Appellant] filed his sixth pro se
PCRA petition on September 6, 2017. On February 2, 2018, the
PCRA court dismissed his petition as premature. On February 14,
2018, the instant notice of appeal was timely filed to the Superior
Court.
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1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
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The PCRA court dismissed [Appellant’s] petition on the basis that
he was prohibited from filing while the appeal of the denial of his
previous petition was pending. In Lark, our Supreme Court
addressed the preclusive effect that a pending appeal has on a
petitioner’s ability to file a subsequent PCRA 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.” 42 Pa.C.S. § 9545(b)(2).
Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000)
(footnote omitted); see also Pa.R.A.P.1701(a) (Generally, “after
an appeal is taken . . . the trial court . . . may no longer proceed
further in the matter.”). Because [Appellant] was precluded from
filing the instant PCRA petition until the appeal from his fifth was
resolved, the lower court dismissed his petition as premature.
PCRA Ct. Op., 5/4/18, at 1-3 (some footnotes omitted).
Appellant raises the following issues on appeal:
1. Whether the [trial c]ourt’s 9545(b) is based on [s]tatutory
[l]aw[.]
2. Whether trial [c]ounsel was ineffective when he failed to inform
[Appellant] of the Commonwealth’s plea offer[.]
3. Whether [the t]rial [c]ourt erred when it sentenced [Appellant]
to an unlawful sentence, pursuant to 18 Pa.C.S.A. § 1102(a)
or (b)[.]
4. Whether the trial court’s jury instructions [were] contrary to
the weight of the evidence for [c]riminal [c]onspiracy[.]
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5. Whether the sentence for [c]riminal [c]onspirac[y] was illegal
base[d] upon double jeopardy concerns and should have
merged into the sentence of first degree murder which was
base[d] upon [the] Commonwealth’s [c]riminal [c]onspiracy
theory[.]
6. Whether trial [c]ourt erred sentencing [Appellant] in violation
of the merger doctrine for aggravated assault and criminal
conspiracy to commit [m]urder crimes[.]
Appellant’s Brief at iv.
Our standard of review from the dismissal of a PCRA petition is limited
to “whether the record supports the PCRA court’s determination and whether
the PCRA court’s decision is free of legal error.” Commonwealth v. Lawson,
90 A.3d 1, 4 (Pa. Super. 2014) (citation omitted).
In Lark, our Supreme Court held that “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.” Lark, 746 A.2d at 588. The Court stated
that “[a] second appeal cannot be taken when another proceeding of the same
type is already pending.” Id. (citation omitted); see also Commonwealth
v. Montgomery, 181 A.3d 359 (Pa. Super. 2018) (en banc) (holding that
“Lark precludes consideration of a subsequent petition from the time a PCRA
order is appealed until no further review of that order is possible”), appeal
denied, 190 A.2d 1134 (Pa. 2018).
Following our review, we agree with the PCRA court’s conclusions that
Appellant’s petition was premature. As indicated by the PCRA court, at the
time Appellant’s sixth PCRA petition was docketed, his appeal from the
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dismissal of his fifth PCRA petition was still pending with the Pennsylvania
Supreme Court. See PCRA Ct. Op., 5/4/18, at 3; see also 583 EAL 2017.
Therefore, the PCRA court correctly concluded that it lacked jurisdiction to
entertain Appellant’s sixth petition. See Lark, 746 A.2d at 588. Accordingly,
we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/18
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