J-S13035-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    AKANINYENE EFIONG AKAN,                    :
                                               :
                       Appellant               :      No. 1405 WDA 2017

                 Appeal from the Order Dated September 6, 2017
               in the Court of Common Pleas of Allegheny County,
              Criminal Division at No(s): CP-02-CR-0001844-2011

BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                               FILED MAY 25, 2018

       Akaninyene Efiong Akan (“Akan”) appeals, pro se, from the Order

denying his “Motion for Admission to the Illegality of the Sentence

Administered on 6/26/2012.”1 We vacate and remand.

____________________________________________


1  Any petition or motion filed after the judgment of sentence becomes final
will be treated as a petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. See Commonwealth v. Jackson, 30
A.3d 516, 521 (Pa. Super. 2011). Indeed, the PCRA is the sole means of
obtaining collateral relief, and subsumes all other remedies where the PCRA
provides a remedy for the claim. See 42 Pa.C.S.A. § 9542 (providing that a
PCRA petition is the “sole means of obtaining collateral relief and encompasses
all other common law and statutory remedies for the same purpose that exist
when it takes effect, including habeas corpus and coram nobis.”). In his
Motion, Akan challenges the legality of his sentence and argues that he did
not receive credit for time served for his pre-trial time in prison. See
Commonwealth v. Beck, 848 A.2d 987, 989 (Pa. Super. 2004) (stating that
collateral challenge to legality of sentence for failure to award credit for time
served prior to sentencing must be brought under the PCRA). Because Akan
filed his Motion after his judgment of sentence became final, and the PCRA
provides a remedy for his claims, the Motion should have been treated as a
PCRA Petition.
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       Following a jury trial, Akan was found guilty of burglary, rape,

involuntary deviate sexual intercourse, sexual assault, indecent assault,

terroristic threats, unlawful restraint, and simple assault.     The trial court

sentenced Akan to an aggregate prison term of 32 to 80 years. This Court

affirmed the judgment of sentence on November 25, 2013, and the Supreme

Court of Pennsylvania denied Akan’s Petition for Allowance of Appeal on May

30, 2014. See Commonwealth v. Akan, 91 A.3d 1295 (Pa. Super. 2013)

(unpublished memorandum), appeal denied, 93 A.3d 461 (Pa. 2014).

       Akan filed a timely first PCRA Petition on October 17, 2014. The PCRA

court appointed Akan counsel, who subsequently filed a Petition to Withdraw

pursuant to Turner/Finley.2          Subsequently, the PCRA court dismissed the

Petition.    This Court affirmed the Order, and the Supreme Court of

Pennsylvania denied Akan’s Petition for Allowance            of Appeal.    See

Commonwealth v. Akan, 141 A.3d 583 (Pa. Super. 2016) (unpublished

memorandum), appeal denied, 157 A.3d 478 (Pa. 2016).

       On October 19, 2016, Akan, pro se, filed his second PCRA Petition. While

his second Petition was pending, Akan filed, inter alia, the instant “Motion for

Admission to the Illegality of the Sentence Administered on 6/26/2012” on

January 4, 2017. On June 8, 2017, the PCRA court dismissed Akan’s second


____________________________________________


2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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PCRA Petition without a hearing. Akan filed a timely Notice of Appeal from

the dismissal of his second Petition, which was docketed at 928 WDA 2017.3

While that appeal was pending, the PCRA court denied Akan’s “Motion for

Admission to the Illegality of the Sentence Administered on 6/26/2012” on

September 6, 2017. Thereafter, Akan filed a timely Notice of Appeal from this

denial.

        Initially, as noted above, Akan’s “Motion for Admission to the Illegality

of the Sentence Administered on 6/26/2012” should have been treated as a

Petition filed pursuant to the PCRA. It is well-settled that a PCRA court “cannot

entertain a new PCRA petition[,] when a prior petition is still under review on

appeal[.]” Commonwealth v. Porter, 35 A.3d 4, 14 (Pa. 2012); see also

Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (noting 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.”).         Thus, “as matter of

jurisdiction, [the] PCRA court cannot entertain new PCRA claims or new PCRA

petition when prior petition is still under review on appeal.” Commonwealth

v. Ali, 10 A.3d 282, 320 n.33 (Pa. 2010) (citing Lark, supra).




____________________________________________


3   The appeal is currently pending before this Court.

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       Here, at the time the PCRA court denied Akan’s “Motion for Admission

to the Illegality of the Sentence Administered on 6/26/2012,” an appeal was

pending from the dismissal of Akan’s second PCRA Petition at 928 WDA 2017.

Thus, under Pennsylvania law, the PCRA court lacked jurisdiction to entertain

the new PCRA Petition. See Porter, supra; Lark, supra.4 Accordingly, we

vacate the PCRA court’s Order and remand the case to the PCRA court to

dismiss the “Motion for Admission to the Illegality of the Sentence

Administered on 6/26/2012” as premature.

       Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/25/2018

____________________________________________


4 We note that this Court recently considered whether a PCRA court has
jurisdiction to address a PCRA petition despite the pendency of another
petition in the PCRA court. See Commonwealth v. Montgomery, 2018 PA
Super 54 (Pa. Super. 2018) (en banc). In Montgomery, this Court held that
“PCRA courts are not jurisdictionally barred from considering multiple PCRA
petitions relating to the same judgment of sentence at the same time unless
the PCRA court’s order regarding a previously filed petition is on appeal and,
therefore, not yet final.” Montgomery, 2018 PA Super 54 at *4 (emphasis
added); see also id. (stating that “nothing bars a PCRA court from
considering a subsequent petition, even if a prior petition is pending, so long
as the petition is not under appellate review.”).             However, unlike
Montgomery, an appeal was pending at the time the “Motion for Admission
to the Illegality of the Sentence Administered on 6/26/2012” was decided.

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