J-S96037-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
VERNON EARL MCGINNIS
Appellant No. 979 WDA 2016
Appeal from the PCRA Order Dated June 8, 2016
In the Court of Common Pleas of Armstrong County
Criminal Division at No(s): CP-03-CR-0000547-1996
BEFORE: BENDER, P.J.E., BOWES, J., and SOLANO, J.
JUDGMENT ORDER BY SOLANO, J.: FILED MARCH 14, 2017
Pro se Appellant, Vernon Earl McGinnis, appeals from the order
dismissing his ninth Post Conviction Relief Act (“PCRA”) 1 petition as
untimely. Appellant contends that although he was eighteen-years old when
he committed, among other crimes, first-degree murder, he is entitled to
relief under Miller v. Alabama, 132 S. Ct. 2455 (June 25, 2012), and
Montgomery v. Louisiana, 136 S. Ct. 718 (Jan. 25, 2016). We quash.
We need not set forth the facts and lengthy procedural history. Of
note, however, is that this Court dismissed Appellant’s eighth PCRA petition
on January 29, 2016. Commonwealth v. McGinnis, 782 WDA 2015 (Pa.
Super., Jan. 29, 2016). On February 11, 2016, this Court docketed
Appellant’s pro se petition for reargument. This Court had not yet ruled on
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1
42 Pa.C.S. §§ 9541-9546.
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Appellant’s reargument petition when, on March 22, 2016, the PCRA court
docketed pro se Appellant’s ninth PCRA petition. With respect to Appellant’s
eighth petition, this Court denied Appellant’s reargument petition on April 8,
2016. Appellant filed a pro se petition for allowance of appeal on May 6,
2016, which our Supreme Court denied on October 13, 2016.
Meanwhile, the PCRA court was addressing Appellant’s ninth PCRA
petition. On May 12, 2016, the PCRA court issued a Pa.R.Crim.P. 907 notice,
and the court docketed Appellant’s opposition to the notice on May 31, 2016.
On June 8, 2016, the PCRA court dismissed Appellant’s ninth PCRA petition
as untimely, and Appellant timely appealed.
As a prefatory matter, we recognize our Supreme Court’s holding that
a subsequent PCRA petition cannot be filed until final resolution of the prior
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.”
Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (footnote and
citation omitted).
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Instantly, Appellant, on February 11, 2016, filed a petition for
reargument with this Court from our order affirming the dismissal of his
eighth PCRA petition. Before this Court resolved Appellant’s reargument
petition (on April 8, 2016), Appellant decided to file his ninth PCRA petition,
which the PCRA court docketed on March 22, 2016. Under Lark, the PCRA
court should not have accepted Appellant’s ninth PCRA petition for filing
during the pendency of Appellant’s appeal of his eighth PCRA petition. See
Lark, 746 A.2d at 588. The PCRA court had no jurisdiction to adjudicate
Appellant’s ninth PCRA petition until the appellate courts finally disposed of
Appellant’s appeal regarding his eighth petition. See id. Because our
Supreme Court did not deny Appellant’s petition for allowance of appeal
regarding his eighth PCRA petition until October 13, 2016 — several months
after Appellant appealed from the dismissal of his ninth PCRA petition to this
Court — we vacate the order below and quash.2
Order vacated. Appeal quashed.
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2
We observe that Appellant does not qualify for application of Miller
because he was not a juvenile when he committed the murder; rather, he
was eighteen-years old. See Miller, 132 S. Ct. at 2460 (holding only that
mandatory life-without-parole sentences for individuals under eighteen at
the time of their crimes are unconstitutional).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/14/2017
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