Com. v. Mead, C., Jr. ( 2018 )

J-S39045-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CLARK EMMANUEL MEAD, JR., :
:
Appellant : No. 1995 MDA 2017
Appeal from the PCRA Order December 7, 2017
in the Court of Common Pleas of Schuylkill County,
Criminal Division at No(s): CP-54-CR-0000306-2012
BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 12, 2018
Clark Emmanuel Mead, Jr. (“Mead”), pro se, appeals from the Order
dismissing his third Petition for relief filed pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On June 5, 2012, a jury found Mead guilty of six counts each of
involuntary deviate sexual intercourse and indecent assault, and two counts
each of corruption of minors and endangering the welfare of children.1 On
September 27, 2012, the trial court sentenced Mead to an aggregate of 27½
to 55 years in prison. Mead was also classified as a sexually violent predator
(“SVP”), and was ordered to comply with the registration requirements under
Pennsylvania’s Sex Offender Registration and Notification Act (“SORNA”), see
42 Pa.C.S.A. §§ 9799.10-9799.41. This Court affirmed Mead’s judgment of
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1 18 Pa.C.S.A. §§ 3123, 3126, 6301, 4304.
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sentence, after which our Supreme Court denied allowance of appeal on July
2, 2014. Commonwealth v. Mead, 93 A.3d 509 (Pa. Super. 2013)
(unpublished memorandum), appeal denied, 94 A.3d 1009 (Pa. 2014).
On July 1, 2015, Mead filed his first PCRA Petition which the PCRA court
denied. This Court affirmed the denial. Commonwealth v. Mead, 156 A.3d
334 (Pa. Super. 2016) (unpublished memorandum). Mead filed a second
PCRA Petition, which the PCRA court dismissed as untimely filed, on November
30, 2016. This Court affirmed the dismissal on July 18, 2017, and our
Supreme Court denied allowance of appeal on February 14, 2018.
Commonwealth v. Mead, 175 A.3d 395 (Pa. Super. 2017) (unpublished
memorandum), appeal denied, 181 A.3d 1077 (Pa. 2018).
On September 6, 2017, while the appeal of the second PCRA Petition
was pending, Mead filed the instant PCRA Petition, his third. The PCRA court
filed a Pa.R.Crim.P. 907 Notice of Intent to Dismiss Mead’s third PCRA Petition
on November 17, 2017, stating that it could not entertain Mead’s Petition while
the second Petition was pending on appeal. On December 7, 2017, the PCRA
court dismissed the Petition. Mead filed a timely Notice of Appeal, and a court-
ordered Pa.R.A.P. 1925(b) Concise Statement.
On appeal, Mead raises the following question for our review:
Did the PCRA Court err in dismissing his PCRA Petition without a
hearing, as [Mead’s] claim did not involve a challenge to his
conviction or sentence; particularly in light of recent decisions by
our Supreme Court of Pennsylvania ([Commonwealth v.]
Muniz, [164 A.3d 1189 (Pa. 2017)], and Superior Court of
Pennsylvania ([Commonwealth v.] Rivera-Figueroa, [174
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A.3d 674 (Pa. Super. 2017),] which entitled [Mead], in the
collateral context, to have the retroactive applications [sic] of
[SORNA] reversed or vacated in his case, including the
classification as a [SVP], as the PCRA was the only available venue
to petition the court in seeking relief?
Brief for Appellant at 1-2.
Our Supreme Court has held 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.” Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (footnote
omitted). The Lark Court further held that while review of the prior PCRA
petition is pending, a PCRA court does not have jurisdiction to adjudicate any
issue raised in a subsequent PCRA petition. See id.; cf. Commonwealth v.
Montgomery, 181 A.3d 359, 365 (Pa. Super. 2018) (en banc) (stating that
“nothing bars a PCRA court from considering a subsequent petition, even if a
prior petition is pending, so long as the prior petition is not under appellate
review.” (emphasis added)).
At the time Mead filed his third Petition, an appeal was pending from the
dismissal of his second PCRA Petition. Thus, under Pennsylvania law, the
PCRA court lacked jurisdiction to entertain the third Petition. See Lark,
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supra. Accordingly, the PCRA court properly dismissed the third Petition.2
Order affirmed.
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2 In his untimely third Petition, Mead invokes the newly-recognized
constitutional right timeliness exception, arguing that our Supreme Court’s
decision in Muniz, 164 A.3d at 1193 (holding that the registration
requirements set forth under SORNA constitute criminal punishment as
opposed to a civil penalty and therefore, their retroactive application violates
the Ex Post Facto clause of the United States and Pennsylvania Constitutions),
rendered his registration requirement unconstitutional. See Brief for
Appellant at 8. Our Court recently addressed a similar claim and concluded
that Muniz does not properly invoke the newly-recognized constitutional right
exception:
Here, we acknowledge that this Court has declared that “Muniz
created a substantive rule that retroactively applies in the
collateral context.” [Rivera-Figueroa, 174 A.3d at 678].
However, because [a]ppellant’s PCRA petition is untimely (unlike
the petition at issue in Rivera-Figueroa), he must demonstrate
that the Pennsylvania Supreme Court has held that Muniz
applies retroactively in order to satisfy section 9545(b)(1)(iii).
[See 42 Pa.C.S.A. § 9545(b)(1)(iii).] Because at this time, no
such holding has been issued by our Supreme Court, [a]ppellant
cannot rely on Muniz to meet that timeliness exception.
Commonwealth v. Murphy, 180 A.3d 402, 405-06 (Pa. Super. 2018)
(emphasis in original). However, “if the Pennsylvania Supreme Court issues
a decision holding that Muniz applies retroactively, [Mead] can then file a
PCRA petition, within 60 days of that decision, attempting to invoke the ‘new
retroactive right’ exception of section 9545(b)(1)(iii).” Id. at 406 n.1.
Further, to the extent Mead invokes the newly-recognized constitutional right
exception with Commonwealth v. Butler, 173 A.3d 1212, 1217-18 (Pa.
Super. 2017) (holding that 42 Pa.C.S.A. § 9799.24(e)(3) to be
unconstitutional under Muniz because it required only a finding of clear and
convincing evidence that an offender was a sexually violent predator), we
conclude that the Supreme Court has not held that Butler applies
retroactively to cases pending on collateral review. See 42 Pa.C.S.A.
§ 9545(b)(1)(iii). As noted above, if the Supreme Court issues a decision
holding that Butler applies retroactively, Mead may file a PCRA petition within
60 days of that decision.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2018
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