J-S45011-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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,1simple 

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

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

____________________________________________

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.
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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 PostConviction 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.