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2023 PA SUPER 60
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PATRICK HORAN :
:
Appellant : No. 2417 EDA 2022
Appeal from the PCRA Order Entered August 19, 2022
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0002572-2006
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PATRICK HORAN :
:
Appellant : No. 2418 EDA 2022
Appeal from the PCRA Order Entered August 19, 2022
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0002868-2006
J-A05012-23
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COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PATRICK HORAN :
:
Appellant : No. 2419 EDA 2022
Appeal from the PCRA Order Entered August 19, 2022
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0002881-2006
BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.
OPINION BY LAZARUS, J.: FILED APRIL 5, 2023
Patrick Horan appeals from the order, entered in the Court of Common
Pleas of Northampton County, dismissing his petition filed pursuant to the Post
Conviction Relief Act (PCRA). See 42 Pa.C.S.A. §§ 9541-9546. After careful
review, we affirm the order.1
This Court has previously summarized the factual and procedural history
as follows:
On May 16, 2007, as a result of two separate criminal incidents,
[Horan] pled guilty[-]but[-]mentally[-]ill to aggravated indecent
assault, criminal attempt to commit rape, aggravated assault,
stalking, burglary, criminal attempt to commit burglary, criminal
trespass, and loitering and prowling at night. On August 13, 2007,
the trial court sentenced [Horan] to consecutive, standard[-]range
sentences totaling an aggregate term of incarceration of 39 years
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1 As discussed infra, Horan filed three separate notices of appeal from the
PCRA court’s order, one at each of the above-captioned dockets, in compliance
with Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). We have
consolidated these appeals sua sponte. See Pa.R.A.P. 513.
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and ten months to 78 years and eight months. Moreover, based
upon an assessment by the Sexual Offender Assessment Board,
the trial court deemed [Horan] a sexually violent predator (SVP).
This Court affirmed [Horan]’s judgment of sentence in an
unpublished memorandum on March 15, 2012. See
Commonwealth v. Horan, 947 A.3d 1245 (Pa. Super. 2012)
(unpublished memorandum [decision]). [On September 27,
2013, o]ur Supreme Court denied further review. See
Commonwealth v. Horan, 76 A.3d 539 (Pa. 2013) [(Table)].
On August 19, 2014, [Horan] filed a pro se PCRA petition alleging
ineffective assistance of trial counsel. The PCRA court appointed
counsel to represent [Horan]. On October 2, 2014, the PCRA court
vacated the original plea and sentence and accepted “a
negotiated, universal resolution that included a new guilty plea
with a sentence bargain.” Trial Court Opinion, 10/15/2021, at 5[.]
More specifically, the PCRA court “accepted the negotiated
resolution for the entry of a nolo contendere” plea and modified
[Horan]’s aggregate sentence to 26 to 52 years of imprisonment
pursuant to an agreement between [Horan] and the
Commonwealth.
On August 15, 2018, [Horan] filed a subsequent PCRA petition.
The PCRA court dismissed the petition as untimely and without
exception to the PCRA time bar. We quashed the appeal by
judgment order and [Horan] did not seek further review with our
Supreme Court. See Commonwealth v. Horan, [217 A.3d 448
(Pa. Super. 2019) (unpublished memorandum decision).]
On April 16, 2020, [Horan] filed a civil petition for injunctive relief.
[A]fter being transferred to the State Correctional Institution
(SCI) at Camp Hill, [Horan] requested “he be transferred or
housed in a different ‘therapeutic environment’ within” the
Department of Corrections (DOC), asserting that [SCI] Camp Hill
could not address his mental health needs. [See] Trial Court
Opinion, 10/15/21, at 7. On April 23, 2020, the trial court
dismissed [Horan]’s petition for lack of jurisdiction, because the
trial court concluded that “original jurisdiction was with the
Pennsylvania Commonwealth Court.” Id. at 8. [Horan] thereafter
filed an appeal with the Commonwealth Court.
On July 30, 2021, the Commonwealth Court issued an
unpublished, per curiam [decision] remanding the case to the trial
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court. [See Horan v. Harry, 260 A.3d 1107, at *3-4 (Pa.
Cmwlth. Ct. 2021) (unpublished memorandum decision).]
…
On August 31, 2021, [Horan] filed a petition to enforce a plea
agreement at his criminal docket. . . . The DOC filed preliminary
objections, asking that [Horan]’s petition be dismissed rather than
transferred [to the Commonwealth Court.] The trial court
scheduled a hearing on . . . September 2, 2021. Following the []
hearing, the trial court [transferred the petition for injunctive relief
back to the Commonwealth Court.] Additionally, the trial court
determined that the remainder of [Horan]’s August 13, 2021
filing, the petition to enforce a purported plea agreement,
remained pending. As such, the trial court [treated the petition
as a PCRA petition.]
On September 27, 2021, the trial court issued notice of its intent
to dismiss the petition without a hearing pursuant to Pa.R.Crim.P.
907. [The trial court subsequently dismissed Horan’s petition and
Horan appealed to this Court.]
See Commonwealth v. Horan, 284 A.3d 898 (Pa. Super. 2022)
(unpublished memorandum decision) (some quotations and citations
omitted).
On August 8, 2022, this Court determined that Horan’s motion to
enforce plea agreement was not a PCRA petition, but rather a filing that fell
outside the ambit of the PCRA. See id. (citing Commonwealth v. Kerns,
220 A.3d 607, 611-13 (Pa. Super. 2019) (motions to enforce plea agreements
are not within ambit of PCRA, but rather under contractual enforcement theory
of specific enforcement)). Ultimately, this Court concluded that Horan’s claims
lacked merit and affirmed his judgment of sentence.2
Id.
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2On August 22, 2022, Horan filed an application for reargument in this Court,
which was denied on October 12, 2022.
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On July 19, 2022, while Horan’s 2021 appeals of his motion to enforce
plea agreement were pending,3 Horan filed the instant PCRA petition. On
August 19, 2022, the PCRA court dismissed Horan’s instant petition as
untimely.
On September 2, 2022, Horan filed timely notices of appeal and a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal at each
of the above-captioned dockets. On November 14, 2022, this Court issued
Rules to Show Cause at each docket as to why Horan’s instant appeals should
not be quashed. See Rule to Show Cause, 11/14/22, at 1; see also
Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (petitioners
precluded from filing subsequent PCRA petitions while another PCRA petition
pending on appeal). Horan filed a response, and this Court discharged the
Rules to Show Cause and deferred the issue to the merits panel. See Order,
1/3/23, at 1.
Prior to addressing Horan’s claims on appeal, we must first determine
whether the PCRA court had jurisdiction to entertain Horan’s serial PCRA
petition. See Commonwealth v. Rosario, 615 A.2d 740, 742 (Pa. Super.
1992) (appellate review of any court order is jurisdictional question); see also
Commonwealth v. Ivy,
146 A.3d 241, 255 (Pa. Super. 2016) (jurisdiction
may be addressed by this Court sua sponte).
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3These three appeals were docketed as Nos. 2363 EDA 2021, 2364 EDA 2021,
and 2426 EDA 2021, respectively, and were addressed in Commonwealth v.
Horan,
284 A.3d 898 (Pa. Super. 2022) (unpublished memorandum
decision). We refer to them collectively as “Horan’s 2021 appeals.”
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In Lark, our Supreme Court held that “a subsequent PCRA petition
cannot be filed until the resolution of review of the pending PCRA by the
highest state court in which review is sought, or upon the expiration of the
time for seeking such review.” See Commonwealth v. Montgomery, 181
A.3d 359, 363 (Pa. Super. 2018) (en banc). In essence, a PCRA court may
not entertain a new PCRA petition when a prior petition is still under review.
Id. at 365.
As stated above, Horan’s 2021 appeals were pending at the time he filed
the instant PCRA petition. Horan argues that the instant appeals should not
be quashed because his 2021 appeals were not taken from an order denying
PCRA relief, but rather from the denial of a motion to enforce plea
agreement, which is outside the ambit of the PCRA. See Response,
11/30/22, at 1-2. Horan contends that this Court has expressly held that
appeals from motions to enforce plea agreements invoke contractual theories
and are not cognizable under the PCRA. Id. Therefore, Horan asserts that
Lark and Montgomery are inapplicable because his motion to enforce plea
agreement was not a PCRA petition.
Id. (relying on Horan, supra; Kerns,
supra).
Initially, we note that Horan is correct that this Court determined his
motion to enforce plea agreement had been improperly dismissed under the
PCRA by the trial court. Nevertheless, we are convinced that this
determination holds no bearing under Lark, Montgomery, and their progeny.
See Montgomery, supra; see also Commonwealth v. Beatty, 207 A.3d
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957, 961 (Pa. Super. 2019) (Pennsylvania courts may not place serial petitions
in abeyance pending outcome of appeal in same case, but rather are
compelled to dismiss them).
While we are cognizant that Horan’s motion to enforce plea agreement
does not fall within the ambit of the PCRA, and, therefore, was not an
outstanding PCRA petition pending direct appeal, see Kerns, supra, we find
this distinction to be of no moment. See Kerns, 220 A.3d at 611 (stating
petitions to enforce plea agreements are collateral petitions). Pennsylvania
Rule of Appellate Procedure 1701 provides, in relevant part, as follows:
(a) General rule.--Except as otherwise prescribed by these
rules, after an appeal is taken or review of a quasi[-]judicial order
is sought, the trial court or other government unit may no longer
proceed in the matter further.
…
(c) Limited to matters in dispute.--Where only a particular
item, claim, or assessment adjudged in the matter is involved in
an appeal, or in a petition for review proceeding relating to a
quasi[-]judicial order, the appeal or petition for review proceeding
shall operate to prevent the trial court or other government unit
from proceeding further with only such item, claim, or
assessment, unless otherwise ordered by the trial court or other
government unit or by the appellate court or a judge thereof as
necessary to preserve the rights of the appellant.
Pa.R.A.P. 1701(a), (c).
“Rule 1701(c) contains an exception permitting the [trial] court to
proceed with the remaining matters before it when the appeal pertains to a
collateral issue in the case, but only if that collateral issue is unrelated
to and not intertwined with the matters on which the trial court intends
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to proceed.” Commonwealth v. McClure, 172 A.3d 668, 685 (Pa. Super.
2017) (emphasis added).
Here, Horan’s 2021 appeals pertained specifically to his plea agreement,
with particular focus on his guilty-but-mentally-ill plea. See Commonwealth
v. Horan, 284 A.3d 898 (Pa. Super. 2022) (unpublished memorandum
decision). Additionally, although ultimately waived on appeal, Horan did
challenge his SVP designation and whether or not he was required to receive
a mental health evaluation and treatment.
Id. Thus, those claims were also
pending before this Court at the time Horan filed the instant PCRA petition.
In the instant appeals before this Court, Horan has again challenged
those exact same issues. See Appellant’s Brief, at 3 (raising challenges to
SVP designation, mental health evaluation, and guilty-but-mentally-ill plea).
Therefore, Horan’s instant PCRA and subsequent appeals were barred under
Montgomery and Rule 1701(a), and, consequently, the PCRA court lacked
jurisdiction to address Horan’s PCRA petition. See McClure, supra; Pa.R.A.P.
1701(a), (c).
In summary, Horan was required to wait for the completion of his 2021
appeals before filing the instant PCRA petition. Because Horan did not wait,
the PCRA court was required to dismiss Horan’s petition without prejudice for
him to refile those claims after his 2021 appeals had been completed.
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Accordingly, under Pa.R.A.P. 1701(a) and Montgomery, we are compelled to
affirm the dismissal of Horan’s serial PCRA petition.4
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/05/2023
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4We observe that the PCRA court dismissed Horan’s instant PCRA petition as
untimely under 42 Pa.C.S.A. § 9545(b)(i)-(iii), rather than under Beatty.
Nevertheless, we may affirm the court’s decision on any basis. See
Commonwealth v. Reese, 31 A.3d 708, 727 (Pa. Super. 2011) (en banc).
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