Com. v. Benner, B. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
BRIAN KEITH BENNER :
:
Appellant : No. 3463 EDA 2018
Appeal from the PCRA Order Entered November 5, 2018
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0000320-2008
BEFORE: BOWES, J., KING, J., and FORD ELLIOTT, P.J.E.
JUDGMENT ORDER BY KING, J.: FILED APRIL 20, 2020
Appellant, Brian Keith Benner, appeals from the order entered in the
Montgomery County Court of Common Pleas, which dismissed his “motion to
modify sentence,” which the court treated as an untimely petition under the
Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546. On June
23, 2008, Appellant entered an open guilty plea to ten counts of various child
pornography offenses. The court adjudicated Appellant a sexually violent
predator and sentenced him on July 7, 2009, to an aggregate 25 to 50 years’
imprisonment, with lifetime registration requirements. This Court affirmed
the judgment of sentence on August 18, 2010, and our Supreme Court denied
allowance of appeal on February 9, 2011. See Commonwealth v. Benner,
11 A.3d 1030 (Pa.Super. 2010), appeal denied, 610 Pa. 572, 17 A.3d 1250(2011) (unpublished memorandum).
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On June 16, 2016, Appellant filed his first PCRA petition pro se. The
court appointed counsel, who subsequently filed a petition to withdraw and
“no-merit” letter per Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927(1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en
banc). On October 20, 2016, the court issued Pa.R.Crim.P. 907 notice. The
court denied PCRA relief on November 16, 2016, and later let counsel
withdraw. Appellant timely filed a notice of appeal on December 16, 2016.1
While Appellant’s appeal from the denial of PCRA relief was still pending,
Appellant filed, on September 12, 2017, the current, second pro se PCRA
petition styled as a “motion to modify sentence.” On September 29, 2017,
this Court affirmed the denial of PCRA relief concerning Appellant’s prior
petition. See Commonwealth v. Benner, 178 A.3d 208 (Pa.Super. 2017)
(unpublished memorandum). Meanwhile, private counsel entered his
appearance regarding Appellant’s second PCRA petition, and filed an amended
petition. On September 7, 2018, the court issued Rule 907 notice; Appellant
responded on September 26, 2018. On November 5, 2018, the court
dismissed the second petition as untimely. Appellant timely filed a notice of
appeal on November 29, 2018. On December 18, 2018, the court ordered
Appellant to file a Pa.R.A.P. 1925(b) statement, which Appellant timely filed
on January 2, 2019.
____________________________________________
1Appellant actually filed a pro se “concise statement of errors” on that date,
but the court treated the filing as a timely notice of appeal.
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Preliminarily, Pennsylvania law makes clear 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[.]”
Commonwealth v. Lark, 560 Pa. 487, 493, 746 A.2d 585, 588 (2000). See
also Commonwealth v. Montgomery, 181 A.3d 359, 364 (Pa.Super. 2018)
(en banc), appeal denied, 647 Pa. 570, 190 A.3d 1134 (2018) (reaffirming
that Lark precludes consideration of subsequent PCRA petition while appeal
of prior PCRA petition is still pending). This Court has explained:
A petitioner must choose either to appeal from the order
denying his prior PCRA petition or to file a new PCRA
petition; the petitioner cannot do both, i.e., file an appeal
and also file a PCRA petition, because prevailing law requires
that the subsequent petition must give way to a pending
appeal from the order denying a prior petition. In other
words, a petitioner who files an appeal from an order
denying his prior PCRA petition must withdraw the appeal
before he can pursue a subsequent PCRA petition. If the
petitioner pursues the pending appeal, then the PCRA court
is required under Lark to dismiss any subsequent PCRA
petitions filed while that appeal is pending.
Commonwealth v. Beatty, 207 A.3d 957, 961 (Pa.Super. 2017), appeal
denied, ___ Pa. ___, 218 A.3d 850 (2019) (some internal citations and
quotation marks omitted) (emphasis in original).
Instantly, Appellant’s appeal from the denial of his first PCRA petition in
this case was still pending when he filed his second PCRA petition on
September 12, 2017. Under prevailing law, the court was required to dismiss
the current petition outright under Lark. See Lark, supra; Montgomery,
supra; Beatty, supra. Thus, dismissal of Appellant’s current PCRA petition
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was proper.2 See Commonwealth v. Kemp, 961 A.2d 1247 (Pa.Super.
2008) (en banc) (explaining this Court can affirm on any valid basis).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/20
____________________________________________
2 Moreover, as the PCRA court properly noted, Appellant’s current petition is
untimely. Although Appellant attempts to invoke the “new constitutional
right” exception to the time-bar, relying 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), Appellant has not established that Muniz applies
retroactively to untimely PCRA petitions. See 42 Pa.C.S.A. § 9545(b)(1)(iii);
Commonwealth v. Murphy, 180 A.3d 402 (Pa.Super. 2018), appeal denied,
___ Pa. ___, 195 A.3d 559 (2018) (holding petitioner cannot rely on Muniz
to meet timeliness exception under Section 9545(b)(1)(iii) until U.S. Supreme
Court or Pennsylvania Supreme Court holds that Muniz is retroactive in
untimely PCRA petitions). Thus, Appellant would not be entitled to PCRA relief
in any event.
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