J-S13024-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JARED HENKEL Appellant No. 1022 WDA 2014

Appeal from the PCRA Order June 4, 2014 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0005481-2002 CP-02-CR-000 5955-2002 CP-02-CR-000 5956-2002

BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J. JUDGMENT ORDER BY MUNDY, J.: FILED APRIL 21, 2015 Appellant, Jared Henkel, appeals from the June 4, 2014 order, dismissing as untimely his second petition filed pu rsuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541- 9546. After careful review, we affirm. On October 21, 2003, a jury convicted Appellant of two counts of kidnapping and one count each of second-degree murd er, robbery, aggravated assault, and simple assault. 1 On January 22, 2004, the trial court imposed an aggregate sentence of life impriso nment without the

____________________________________________

1 18 Pa.C.S.A. §§ 2901(a), 2502(b), 3701(a)(1), 2702 (a)(1), and 2701(a)(1), respectively.J-S13024-15

- 2 -

possibility of parole. On November 14, 2007, this Court affirmed Appellant’s judgment of sentence, and our Supreme Court denied his petition for allowance of appeal on August 25, 2008. Commonwealth v. Henkel , 938 A.2d 433 (Pa. Super 2007), appeal denied , 955 A.2d 356 (Pa. 2008). Appellant did not file a petition for a writ of certiorari with the United States Supreme Court. As a result, his judgment of senten ce became final on November 24, 2008. See generally 42 Pa.C.S.A. § 9545(b)(3); U.S. S. Ct. R. 13(1). Thereafter, Appellant filed his first, t imely PCRA petition, which the PCRA court denied on February 17, 2012. On Apr il 11, 2014, an en banc panel of this Court affirmed the denial of Appellan t’s PCRA petition, and our Supreme Court denied Appellant’s petition for allow ance of appeal on October 21, 2014. Commonwealth v. Henkel , 90 A.3d 16 (Pa. Super. 2014) ( en banc ), appeal denied , 101 A.3d 785 (Pa. 2014). Appellant filed the instant petition on May 7, 201 4, which was during the pendency of the appeal period of his first PCRA petition. “[W]hen an appellant’s PCRA appeal is pending before a court, a subsequent PCRA petition cannot be filed until the resolution of re view 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.” Commonwealth v. Lark , 746 A.2d 585, 588 (Pa. 2000). On May 8, 2014, Appe llant filed his petition for allowance of appeal with our Supreme Court from this Court’s April 11, 2014 decision affirming the denial of his first PCR A. Thus, on June 4, 2014,J-S13024-15

- 3 -

at the time the PCRA court dismissed his second PCRA petit ion as untimely, Appellant’s petition for allowance of appeal regardin g his first PCRA petition was still pending with our Supreme Court. Accordingly, the second PCRA petition was premature under Lark . Therefore, the PCRA court correctly determined that it was prevented from addressing the m erits of Appellant’s second PCRA petition. 2 Accordingly, we affirm the June 4, 2014 order dismissin g Appellant’s PCRA petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/21/2015

____________________________________________

2 To the extent that our analysis differs from the PCR A court’s, we note that we may affirm the PCRA court on any legal basis suppor ted by the record. Commonwealth v. Doty , 48 A.3d 451, 456 (Pa. Super. 2012).