J-S20023-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ANTHONY RUBY, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
NANCY A. GIROUX,
Appellee No. 1308 WDA 2014
Appeal from the Order July 22, 2014
In the Court of Common Pleas of Erie County
Civil Division at No(s): No. 11956-2014
MEMORANDUM PER CURIAM: FILED JULY 21, 2015
Appellant, Anthony Ruby, appeals from the July 22, 2014 order
entered in the Erie County Court of Common Pleas denying his petition for
writ of habeas corpus. We affirm.
Appellant pled guilty on October 4, 2012, at Erie County docket
number 2321 of 2012 to two counts of sale or transfer of firearms (counts
two and three), and one count each of forgery (count five) and tampering
with records (count seven). He pled guilty to the same counts at docket
number 2323 of 2012.
The trial court sentenced Appellant on December 5, 2012. At docket
number 2321 of 2012, Appellant was sentenced to twenty-seven to fifty-four
months of imprisonment for count two, with count three merging for
purposes of sentencing, and two concurrent terms of imprisonment of
sixteen to thirty-two months each for forgery and tampering with records.
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At docket number 2323 of 2012, the trial court sentenced Appellant to
twenty-seven to fifty-four months of imprisonment for count two,
consecutive to count two at docket number 2321 of 2012, with count three
merging for purposes of sentencing, and two concurrent terms of
imprisonment of sixteen to thirty-two months each for forgery and
tampering with records. Appellant filed a motion to reconsider sentence at
both docket numbers, which the trial court denied on December 11, 2012.
Appellant did not file a direct appeal.
On September 16, 2013, Appellant filed a pro se petition for writ of
habeas corpus,1 which the lower court treated as a petition filed pursuant to
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546. The
PCRA court appointed counsel, who filed a Turner/Finley2 letter on
November 20, 2013. On December 3, 2013, the PCRA court issued a notice
of intent to dismiss the petition without a hearing. Appellant subsequently
filed objections to the notice of intent. The PCRA court dismissed the
petition on February 19, 2014.
Appellant did not appeal the February 19, 2014 dismissal but instead
filed an amended PCRA petition on February 20, 2014, and a motion for
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1
While the Erie County Prothonotary assigned the document a civil docket
number, it properly cross-filed it with the underlying criminal docket
numbers of 2321 and 2323 of 2012.
2
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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reconsideration on March 4, 2014. On March 4, 2014, the PCRA court
vacated its order dismissing Appellant’s PCRA petition and ultimately entered
a new final order denying the petition on March 12, 2014. Appellant filed a
notice of appeal to this Court on April 9, 2014.3
After the notice of appeal was filed and while the appeal was pending
in this Court, Appellant, pro se, filed a second petition for writ of habeas
corpus, which is the subject of this appeal and which duplicated claims made
in the prior petition. That second petition was improperly docketed4 in the
lower court on July 15, 2014. Despite that improper docketing, the common
pleas court treated the petition for writ of habeas corpus as another PCRA
petition. Noting that Appellant’s prior PCRA petition was still pending on
appeal, the PCRA court denied the second petition on July 22, 2014.
Appellant filed the instant notice of appeal on July 30, 2014.
Initially, we agree that the present petition for writ of habeas corpus
properly was treated as a PCRA petition. See, e.g., Commonwealth v.
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3
Months after the events in question leading to this appeal, Appellant
discontinued that appeal from the March 12, 2014 denial of his PCRA petition
on September 11, 2014.
4
Upon appeal to this Court of the second petition for writ of habeas corpus,
we directed our Prothonotary on June 16, 2015, to remand to the Erie
County Clerk of Courts and Prothonotary the partial record previously
certified to this Court in this case for its proper compilation with the record
at Erie County docket numbers 2321 and 2323 of 2012. As the complete
certified record has now been returned, we may proceed to address the
appeal.
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Taylor, 65 A.3d 462, 465 (Pa. Super. 2013) (instructing that writ of habeas
corpus should have been treated as PCRA petition). If the PCRA offers a
remedy for a petitioner’s claim, it is the sole avenue of relief.
Commonwealth v. Wyatt, ___ A.3d ___, 2015 PA Super 96 (Pa. Super.
filed April 24, 2015). In construing the language of 42 P.C.S. § 9542,
“Pennsylvania Courts have repeatedly held that the PCRA contemplates
challenges to the propriety of a conviction or a sentence. Commonwealth
v. Masker, 34 A.3d 841, 843 (Pa. Super. 2011) (en banc).”
Commonwealth v. Heredia, 97 A.3d 392, 394 (Pa. Super. 2014), appeal
denied, 104 A.3d 524 (Pa. 2014). In the present petition, Appellant
asserted violations of the Pennsylvania and United States Constitutions,
claiming the Crimes Code was enacted without constitutional authorization.
Thus, he suggests he was charged and convicted of violating an invalid law.
Petition for Writ of Habeas Corpus, 7/15/14, at 8. Appellant’s challenges are
to the propriety of his convictions, and therefore, his claims are cognizable
under the PCRA. See, e.g., Commonwealth v. Peterkin, 722 A.2d 638,
640–641 (Pa. 1998) (“Because Peterkin alleges violations of the constitution
and of law . . . his claims were cognizable under the PCRA.”).
We further conclude that the PCRA court correctly dismissed the
instant petition. Pursuant to Commonwealth v. Lark, 746 A.2d 585 (Pa.
2000), Appellant was precluded from filing a PCRA petition on July 15, 2014,
because his appeal of his first PCRA petition was still pending. As our
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Supreme Court explained: “[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.” Id. at 588 (footnote omitted). Lark precluded Appellant from
filing a subsequent PCRA petition until the appeal of his first PCRA petition
became final. Commonwealth v. Callahan, 101 A.3d 118, 122–123 (Pa.
Super. 2014). Thus, the PCRA court correctly dismissed the petition. See
Commonwealth v. Porter, 35 A.3d 4, 14 (Pa. 2012) (stating, a “PCRA trial
court cannot entertain a new PCRA petition when a prior petition is still
under review on appeal”); Commonwealth v. Abu-Jamal, 941 A.2d 1263,
1268–1269 (Pa. 2008) (“[W]hen a PCRA appeal is pending, a subsequent
PCRA petition cannot be filed until the appeal of the first petition is
resolved.”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/21/2015
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