concluding that a PCRA petitioner cannot file a subsequent PCRA petition while their PCRA appeal is pending, and “[i]f the subsequent petition is not filed within one year of the date when the judgment became final, then the petitioner must plead and prove that one of the three exceptions to the time bar under 42 Pa. C.S. §9545(b)(1) applies [and file] . . . the subsequent petition . . . within sixty days of the date of the order which finally resolves the previous PCRA petition, because this is the first ‘date the claim could have been presented.” (quoting 42 Pa. C.S. §9545(b)(2))
How later courts described this case
- concluding that a PCRA petitioner cannot file a subsequent PCRA petition while their PCRA appeal is pending, and “[i]f the subsequent petition is not filed within one year of the date when the judgment became final, then the petitioner must plead and prove that one of the three exceptions to the time bar under 42 Pa. C.S. §9545(b)(1) applies [and file] . . . the subsequent petition . . . within sixty days of the date of the order which finally resolves the previous PCRA petition, because this is the first ‘date the claim could have been presented.” (quoting 42 Pa. C.S. §9545(b)(2))
- holding “that when an appellant’s PCRA petition 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 the expiration of time for seeking such review”; if the subsequent petition is not filed within one year of the date that the judgment of sentence became final, it “must also be filed within 60 days of the date of the order which finally resolves the previous PCRA petition, because this is the first ‘date the claim could have been presented’”
- holding 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," and that the petitioner must file the subsequent petition "within sixty days of the date of the order which finally resolves the previous PCRA petition, because this is the first 'date the claim could have been presented.' "
- holding that couching argument in terms of ineffectiveness cannot save PCRA petition that does not fall into exception to ____________________________________________ 2 See 61 Pa.C.S. §§ 4501-4512 (RRRI Act). 3 The PCRA sets forth the newly discovered facts exception as follows: (ii) [T]he facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence[.] 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). -3- J-S27030-18 jurisdictional time bar
Written by the judges who cited it.
Distinguished
Distinguished by Commonwealth v. Lesko, 609 Pa. 128 (2011)
” Lark is distinguishable because, in that case, the appellant had a pending PCRA petition, not a direct appeal from a resentencing proceeding, which was deemed to require a delay in filing a serial PCRA.
The opinion
NIGRO, Justice,
concurring.
I concur in the result reached by the majority but write separately to comment on Appellant’s claim, although waived, that the trial court improperly refused to allow defense counsel to make a record of the race of the venirepersons for purposes of his Batson claim. 1
*500 During voir dire, defense counsel requested that the trial court allow him to develop a record indicating the racial composition of the venirepersons in order to preserve a claim that the prosecutor was unconstitutionally using his peremptory strikes to exclude African-Americans from the jury. The trial court refused, stating that “there is no way to determine a person’s race or color. I wouldn’t do it. I don’t think it’s proper.” N.T., 6/7/85, at 178.
In my view, defense counsel’s request was clearly reasonable in light of this Court’s general requirement that a defendant seeking to establish a cognizable Batson claim on appeal must make a record specifically identifying the race of all venirepersons stricken by the prosecution, the race of the jurors acceptable to the prosecution who were stricken by the defense and the racial composition of the final jury selected. See Commonwealth v. Hackett, 558 Pa. 78 , 735 A.2d 688, 694 (1999). Given that such a record is, in essence, a prerequisite to preserving a Batson claim for appellate review, I believe that any time counsel makes a timely request to make a record for purposes of Batson, such a request should be granted.
. In Batson v. Kentucky, 476 U.S. 79, 89 , 106 S.Ct. 1712, 1719 , 90 L.Ed.2d 69 (1986), the United States Supreme Court held that the *500 Equal Protection Clause prohibits a prosecutor from exercising peremptory challenges to exclude jurors solely on account of their race.