J-S45011-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

GARY EUGENE VAUGHN, JR.,

                            Appellant               No. 1175 WDA 2015


                  Appeal from the Order Dated June 29, 2015
               In the Court of Common Pleas of Cambria County
              Criminal Division at No(s): CP-11-CR-0000788-2007


BEFORE: OLSON, DUBOW AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                                FILED JULY 13, 2016

        Appellant Gary Eugene Vaughn, Jr. appeals pro se from the June 29,

2015 order denying his petition for a writ of coram nobis. We affirm.

        The relevant factual background and procedural history of this case is

as follows. On January 9, 2007, Appellant was arrested following an

altercation outside a bar and charged with aggravated assault, 1 simple

assault,2 and recklessly endangering another person.3      On June 27, 2008,

after pleading guilty to simple assault, he was sentenced to 3 months’ house


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1
    18 Pa.C.S.A. § 2702(a)(1).
2
    18 Pa.C.S.A. § 2701(a)(1).
3
    18 Pa.C.S.A. § 2705.



*Retired Senior Judge assigned to the Superior Court.
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arrest followed by 20 months’ probation. His probation was terminated on

May 15, 2009.

      On February 17, 2015, Appellant filed a petition under the Post-

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-9546. That petition was

dismissed because Appellant was no longer serving a sentence. See 42

Pa.C.S.A. § 9543(a)(1).       Appellant appealed the dismissal of his PCRA

petition.   While that appeal was pending, he filed a petition for a writ of

coram nobis on April 8, 2015. In that petition, he requested vacatur of his

judgment of sentence. The trial court denied the petition on June 29, 2015.

      Appellant filed a timely notice of appeal on July 27, 2015 and the trial

court ordered him to file a concise statement of matters complained of on

appeal (“concise statement”) on or before September 15, 2015.                See

Pa.R.A.P. 1925(b).     Appellant’s concise statement was not docketed until

September 30, 2015; however, Appellant states that he placed his concise

statement into the stream of prison mail on September 13, 2015.          As we

ultimately determine that the trial court lacked jurisdiction over Appellant’s

petition, we decline to remand for an evidentiary hearing on when the

concise statement was filed and instead proceed to our analysis of the trial

court’s jurisdiction over the petition.

      Appellant presents two issues for our review:

      1. Did the [trial court] abuse its discretion by providing virtually
      no reason for denying [A]ppellant’s [writ of coram nobis] thus
      precluding any meaningful appellate review?


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      2. Did the [trial court] err in its order denying [A]ppellant’s [writ
      of coram nobis]?

Appellant’s Brief at 4.

      Prior to addressing the merits of Appellant’s claims, we first address

the Commonwealth’s contention that the trial court lacked jurisdiction over

Appellant’s petition. “[A]s a pure question of law, the standard of review in

determining whether a [trial] court has subject matter jurisdiction is de novo

and the scope of review is plenary.”      Beneficial Consumer Disc. Co. v.

Vukman, 77 A.3d 547, 550 (Pa. 2013) (citation omitted).

      Appellant argues that the trial court had jurisdiction over his petition

pursuant to this Court’s decision in Commonwealth v. Descardes, 101

A.3d 105, 109 (Pa. Super. 2014) (en banc), vacated, 2016 WL 1249964 (Pa.

Mar. 29, 2016). Our Supreme Court, however, vacated this Court’s decision

and held that “where a petitioner’s claim is cognizable under the PCRA, the

PCRA is the only method of obtaining collateral review.”      Commonwealth

v. Descardes, 2016 WL 1249964, *8 (Pa. Mar. 29, 2016).

      Here, Appellant claims his trial counsel was ineffective. Appellant’s

Brief at 10. An ineffective assistance of counsel claim is cognizable under

the PCRA. 42 Pa.C.S.A. § 9543(a)(2)(ii); see Descardes, 101 A.3d at 111-

114 (Bowes, J. dissenting).    Because Appellant’s claim is cognizable under

the PCRA, the trial court should have treated the petition as a PCRA petition.

      When Appellant filed his coram nobis petition, which we deem a PCRA

petition, his appeal from the denial of his first PCRA petition was still

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pending. As such, the trial court lacked jurisdiction over the instant petition.

See Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (“[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.”). As the trial court lacked

jurisdiction over the petition, we affirm the denial of relief.4

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/13/2016




____________________________________________


4
  Furthermore, even if the appeal of Appellant’s first PCRA petition was not
pending, the trial court lacked jurisdiction over the petition. Appellant’s
judgment of sentence became final on July 31, 2008. He filed the instant
petition on April 8, 2015.      As such, Appellant’s petition was patently
untimely. See 42 Pa.C.S.A. § 9545(b)(1). As Appellant did not plead and
prove the applicability of a statutory timeliness exception, the PCRA court
lacked jurisdiction over the petition. Moreover, Appellant is not entitled to
relief under the PCRA as he was no longer serving a sentence for the crimes
at issue.



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