Com. v. Nichols, M. , 208 A.3d 1087 ( 2019 )

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2019 PA Super 128COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARK ALLEN NICHOLS :
:
Appellant : No. 1762 EDA 2018
Appeal from the PCRA Order May 11, 2018
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0002279-2016,
CP-48-CR-0002291-2016, CP-48-CR-0003609-2016
BEFORE: SHOGAN, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
OPINION BY MURRAY, J.: FILED APRIL 24, 2019
Mark Allen Nichols (Appellant) appeals from the order denying his first
petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§
9541-9546, following an evidentiary hearing. Based upon our Supreme
Court’s recent decision in Commonwealth v. Walker, 185 A.3d 969 (Pa.
2018), we quash the appeal.
On January 30, 2017, Appellant, represented by appointed counsel
Alexander Karam, Jr., Esq., entered into a negotiated guilty plea on the above
three dockets to two charges of possession with intent to deliver, one charge
of persons not to possess firearms, one charge of accident involving damage,
and one charge of driving while license suspended – DUI related.1 That same
____________________________________________
1 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A § 6501(a)(1); 75 Pa.C.S.A. §§
3743(a), 1543(b)(1), respectively.
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day, Appellant received a negotiated sentence of 54 to 108 months of
incarceration. Appellant was colloquied during the guilty plea and at
sentencing regarding the advice of counsel and the voluntariness of his plea.
See Notes of Testimony, 1/30/17, at 1-12.
Appellant did not file a direct appeal, but on January 5, 2018, timely
filed a pro se PCRA petition asserting that plea counsel was ineffective. PCRA
counsel filed an amended petition on Appellant’s behalf on April 3, 2018.
Following hearings on April 6, 2018, and April 13, 2018, the PCRA court on
May 11, 2018, entered an order denying relief; that order contained all three
docket numbers in the caption. Appellant filed this timely appeal; the notice
of appeal also contains the three trial court docket numbers.
On July 27, 2018, this Court issued a rule to show cause as to why the
appeal should not be quashed pursuant to Commonwealth v. Walker, 185
A.3d 969 (Pa. 2018) (holding that “where a single order resolves issues arising
on more than one docket, separate notices of appeal must be filed for each of
those cases.”). In response, Appellant argued that this appeal should not be
quashed because Walker was not the law when the underlying order was
entered on May 11, 2018; the issues raised at all three dockets are identical;
there is no prejudice to the Commonwealth; the Commonwealth has not
objected; quashal would “entirely deny” appellate review; Pa.R.A.P. 341(a)
does not explicitly instruct the filing of separate appeals; the “evils designed
to be eliminated” by Pa.R.A.P. 341(a) are not present in this case; and quashal
“would be contrary to decades of case law.” Answer to Show Cause Order,
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8/6/18, at 5-7. On October 2, 2108, this Court entered an order referring the
Walker issue to this merits panel.
On appeal, Appellant presents two issues:
I. Whether the appeal should be quashed for failure to file
separate Notices of Appeal when a single Order resolved all issues
arising on more than one trial court docket?
II. Whether the PCRA court erred in denying the requested relief
where ineffective assistance of counsel caused [Appellant] to
enter an involuntary and unknowing plea?
Appellant’s Brief at 4.
In his first issue, Appellant repeats his response to our rule to show
cause as to why the appeal should not be quashed. See Appellant’s Brief at
8-13 (arguing that the underlying order was entered prior to Walker on May
11, 2018; the issues raised at all three dockets are identical; there is no
prejudice to the Commonwealth and the Commonwealth has not objected;
quashal would “entirely deny” appellate review; Pa.R.A.P. 341(a) does not
explicitly instruct the filing of separate appeals; the “evils designed to be
eliminated” by Pa.R.A.P. 341(a) are not present in this case; and quashal
“would be contrary to decades of case law.”). Upon review, we cannot agree.
It is undisputed that Appellant filed a single notice of appeal with issues
that relate to three different lower court docket numbers. The Official Note to
Rule 341 of the Pennsylvania Rules of Appellate Procedure provides:
Where, however, one or more orders resolves issues arising on
more than one docket or relating to more than one judgment,
separate notices of appeals must be filed. Commonwealth
v. C.M.K., 932 A.2d 111, 113 & n.3 (Pa. Super. 2007) (quashing
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appeal taken by single notice of appeal from order on remand for
consideration under Pa.R.Crim.P. 607 of two persons’ judgments
of sentence).
Pa.R.A.P. 341, Official Note (emphasis added).
As Appellant recognizes, courts of this Commonwealth historically
allowed appeals to proceed, even if they failed to comply with Pa.R.A.P. 341.
See, e.g., In the Interest of P.S., 158 A.3d 643, 648 (Pa. Super. 2017)
(noting common practice to allow appeals to proceed if the issues involved are
nearly identical, no objection has been raised, and the period for appeal has
expired).
However, in Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), our
Supreme Court held – unequivocally – that “prospectively, where a single
order resolves issues arising on more than one docket, separate notices of
appeal must be filed for each case.” Id. at 971 (emphasis added). The
Supreme Court observed that the Official Note to Rule 341 of the Pennsylvania
Rules of Appellate Procedure “provides a bright-line mandatory instruction to
practitioners to file separate notices of appeal,” and accordingly, determined
that “the failure to do so requires the appellate court to quash the
appeal.” Walker, at 976-77 (emphasis added). Because this mandate was
contrary to decades of case law, the Supreme Court specified that the
requirement would apply only to appeals filed after June 1, 2018, the date
Walker was filed. Id.
Instantly, we must apply Walker because Appellant filed his notice of
appeal on June 5, 2018. Although the PCRA court addressed the merits of
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Appellant’s collateral issues in its opinion, under current precedent, our
Supreme Court mandates that Appellant was to file a separate notice of appeal
for each lower court docket number. Because Appellant did not do so, and
consistent with Walker, we are constrained to quash the appeal.
Appeal quashed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/19
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