J-S20023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ANTHONY RUBY,                                IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                        Appellant

                   v.

NANCY A. GIROUX,

                        Appellee                 No. 1308 WDA 2014


                    Appeal from the Order July 22, 2014
               In the Court of Common Pleas of Erie County
                  Civil Division at No(s): No. 11956-2014

MEMORANDUM PER CURIAM:                             FILED JULY 21, 2015

     Appellant, Anthony Ruby, appeals from the July 22, 2014 order

entered in the Erie County Court of Common Pleas denying his petition for

writ of habeas corpus. We affirm.

     Appellant pled guilty on October 4, 2012, at Erie County docket

number 2321 of 2012 to two counts of sale or transfer of firearms (counts

two and three), and one count each of forgery (count five) and tampering

with records (count seven).   He pled guilty to the same counts at docket

number 2323 of 2012.

     The trial court sentenced Appellant on December 5, 2012. At docket

number 2321 of 2012, Appellant was sentenced to twenty-seven to fifty-four

months of imprisonment for count two, with count three merging for

purposes of sentencing, and two concurrent terms of imprisonment of

sixteen to thirty-two months each for forgery and tampering with records.
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At docket number 2323 of 2012, the trial court sentenced Appellant to

twenty-seven      to   fifty-four   months     of   imprisonment     for   count   two,

consecutive to count two at docket number 2321 of 2012, with count three

merging     for   purposes     of   sentencing,     and   two   concurrent   terms    of

imprisonment of sixteen to thirty-two months each for forgery and

tampering with records. Appellant filed a motion to reconsider sentence at

both docket numbers, which the trial court denied on December 11, 2012.

Appellant did not file a direct appeal.

       On September 16, 2013, Appellant filed a pro se petition for writ of

habeas corpus,1 which the lower court treated as a petition filed pursuant to

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546.                    The

PCRA court appointed counsel, who filed a Turner/Finley2 letter on

November 20, 2013. On December 3, 2013, the PCRA court issued a notice

of intent to dismiss the petition without a hearing. Appellant subsequently

filed objections to the notice of intent.            The PCRA court dismissed the

petition on February 19, 2014.

       Appellant did not appeal the February 19, 2014 dismissal but instead

filed an amended PCRA petition on February 20, 2014, and a motion for
____________________________________________


1
  While the Erie County Prothonotary assigned the document a civil docket
number, it properly cross-filed it with the underlying criminal docket
numbers of 2321 and 2323 of 2012.
2
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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reconsideration on March 4, 2014.              On March 4, 2014, the PCRA court

vacated its order dismissing Appellant’s PCRA petition and ultimately entered

a new final order denying the petition on March 12, 2014. Appellant filed a

notice of appeal to this Court on April 9, 2014.3

       After the notice of appeal was filed and while the appeal was pending

in this Court, Appellant, pro se, filed a second petition for writ of habeas

corpus, which is the subject of this appeal and which duplicated claims made

in the prior petition. That second petition was improperly docketed4 in the

lower court on July 15, 2014. Despite that improper docketing, the common

pleas court treated the petition for writ of habeas corpus as another PCRA

petition.   Noting that Appellant’s prior PCRA petition was still pending on

appeal, the PCRA court denied the second petition on July 22, 2014.

Appellant filed the instant notice of appeal on July 30, 2014.

       Initially, we agree that the present petition for writ of habeas corpus

properly was treated as a PCRA petition.           See, e.g., Commonwealth v.

____________________________________________


3
    Months after the events in question leading to this appeal, Appellant
discontinued that appeal from the March 12, 2014 denial of his PCRA petition
on September 11, 2014.
4
  Upon appeal to this Court of the second petition for writ of habeas corpus,
we directed our Prothonotary on June 16, 2015, to remand to the Erie
County Clerk of Courts and Prothonotary the partial record previously
certified to this Court in this case for its proper compilation with the record
at Erie County docket numbers 2321 and 2323 of 2012. As the complete
certified record has now been returned, we may proceed to address the
appeal.



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Taylor, 65 A.3d 462, 465 (Pa. Super. 2013) (instructing that writ of habeas

corpus should have been treated as PCRA petition).                 If the PCRA offers a

remedy   for   a   petitioner’s   claim,   it    is   the   sole    avenue   of    relief.

Commonwealth v. Wyatt, ___ A.3d ___, 2015 PA Super 96 (Pa. Super.

filed April 24, 2015).    In construing the language of 42 P.C.S. § 9542,

“Pennsylvania Courts have repeatedly held that the PCRA contemplates

challenges to the propriety of a conviction or a sentence. Commonwealth

v.   Masker,   34    A.3d    841,    843    (Pa.      Super.       2011)   (en    banc).”

Commonwealth v. Heredia, 97 A.3d 392, 394 (Pa. Super. 2014), appeal

denied, 104 A.3d 524 (Pa. 2014).                In the present petition, Appellant

asserted violations of the Pennsylvania and United States Constitutions,

claiming the Crimes Code was enacted without constitutional authorization.

Thus, he suggests he was charged and convicted of violating an invalid law.

Petition for Writ of Habeas Corpus, 7/15/14, at 8. Appellant’s challenges are

to the propriety of his convictions, and therefore, his claims are cognizable

under the PCRA. See, e.g., Commonwealth v. Peterkin, 722 A.2d 638,

640–641 (Pa. 1998) (“Because Peterkin alleges violations of the constitution

and of law . . . his claims were cognizable under the PCRA.”).

      We further conclude that the PCRA court correctly dismissed the

instant petition. Pursuant to Commonwealth v. Lark, 746 A.2d 585 (Pa.

2000), Appellant was precluded from filing a PCRA petition on July 15, 2014,

because his appeal of his first PCRA petition was still pending.                  As our


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Supreme Court explained: “[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.” Id. at 588 (footnote omitted). Lark precluded Appellant from

filing a subsequent PCRA petition until the appeal of his first PCRA petition

became final. Commonwealth v. Callahan, 101 A.3d 118, 122–123 (Pa.

Super. 2014). Thus, the PCRA court correctly dismissed the petition. See

Commonwealth v. Porter, 35 A.3d 4, 14 (Pa. 2012) (stating, a “PCRA trial

court cannot entertain a new PCRA petition when a prior petition is still

under review on appeal”); Commonwealth v. Abu-Jamal, 941 A.2d 1263,

1268–1269 (Pa. 2008) (“[W]hen a PCRA appeal is pending, a subsequent

PCRA petition cannot be filed until the appeal of the first petition is

resolved.”).

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2015




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