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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SCOTT KERNS :
:
Appellant : No. 1598 MDA 2017
Appeal from the PCRA Order September 18, 2017
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0000371-2001
BEFORE: GANTMAN, P.J., KUNSELMAN, J., and MUSMANNO, J.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED: NOVEMBER 7, 2018
Appellant, Scott Kerns, appeals from the order entered in the Berks
County Court of Common Pleas, which denied his serial petition brought
pursuant to the Post-Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-
9546. On May 14, 2001, Appellant entered an open guilty plea to involuntary
deviate sexual intercourse. The court sentenced Appellant on January 18,
2002, to 7½ to 20 years’ incarceration; the court also adjudicated Appellant
a sexually violent predator. Appellant timely filed a notice of appeal on
February 19, 2002. On December 23, 2003, this Court affirmed the judgment
of sentence. See Commonwealth v. Kerns, 844 A.2d 1282 (Pa.Super.
2003) (unpublished memorandum). Appellant did not pursue further direct
appellate review.
Appellant timely filed pro se his first PCRA petition on February 17, 2004.
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On May 10, 2004, the PCRA court issued notice per Pa.R.Crim.P. 907, and
dismissed Appellant’s PCRA petition on June 8, 2004. Appellant timely filed a
notice of appeal on June 23, 2004. This Court affirmed the June 8, 2004 order
on March 4, 2005. See Commonwealth v. Kerns, 875 A.2d 388 (Pa.Super.
2005) (unpublished memorandum). Appellant then unsuccessfully litigated
twelve more PCRA petitions.
On October 14, 2016, Appellant filed pro se his 14th PCRA petition. The
PCRA court dismissed the petition on March 13, 2017; Appellant filed a pro se
notice of appeal on April 5, 2017. On August 24, 2017, Appellant filed pro se
his 15th PCRA petition and a motion to stay the 15th PCRA petition until this
Court disposed of his appeal regarding his 14th PCRA petition. The PCRA court
denied Appellant’s 15th PCRA petition on August 31, 2017. On September 8,
2017, Appellant pro se filed the instant PCRA petition, his 16th. On September
11, 2017, Appellant filed a pro se motion to bar applicability of sex offender
registration and/or petition for writ of habeas corpus. The PCRA court
dismissed both the instant PCRA petition and the habeas corpus petition on
September 18, 2017. Appellant timely filed pro se notices of appeal from the
denials of his 15th and 16th PCRA petitions on September 28, 2017, and
October 13, 2017, respectively. This Court affirmed the denial of Appellant’s
14th PCRA petition on November 7, 2017. See Commonwealth v. Kerns,
181 A.3d 386 (Pa.Super. 2017) (unpublished memorandum). On December
1, 2017, Appellant filed in this Court a pro se motion to withdraw the appeal
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from the denial of his 15th PCRA petition. On June 11, 2018, our Supreme
Court denied allowance of appeal on Appellant’s 14th PCRA petition. See
Commonwealth v. Kerns, ___ Pa. ___, 187 A.3d 212 (2018).
The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A PCRA
petition, including a second or subsequent petition, shall be filed within one
year of the date the underlying judgment of sentence becomes final. 42
Pa.C.S.A. § 9545(b)(1). A judgment of sentence is deemed final at the
conclusion of direct review or at the expiration of time for seeking the review.
42 Pa.C.S.A. § 9545(b)(3). The statutory exceptions to the PCRA time-bar
allow for very limited circumstances that excuse the late filing of a petition.
42 Pa.C.S.A. § 9545(b)(1).
Instantly, Appellant’s judgment of sentence became final on January 22,
2004, following the 30 days for filing a petition for appeal with our Supreme
Court. See Pa.R.A.P. 903(a). Appellant filed the current pro se PCRA petition
on September 8, 2017, which is patently untimely. See 42 Pa.C.S.A. §
9545(b)(1). Appellant did not assert or prove any of the statutory exceptions
to the PCRA time-bar. See id.; Commonwealth v. Murphy, 180 A.3d 402
(Pa.Super. 2018) (stating petitioner cannot rely on Commonwealth v.
Muniz, 640 Pa. 699, 164 A.3d 1189 (2017), cert. denied, ___ U.S. ___, 138
S.Ct. 925, 200 L.Ed.2d 213 (2018), to meet timeliness exception under
Section 9545(b) until Supreme Court holds so). Moreover, Appellant filed the
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instant PCRA petition while the orders denying his 14th and 15th petitions were
pending on appeal. Accordingly, the PCRA court properly dismissed
Appellant’s current (16th) petition for lack of jurisdiction. See
Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585 (2000) (holding court
has no jurisdiction to review subsequent PCRA petition that is filed while
appeal from previous PCRA petition is still pending).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/07/2018
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