Com. v. Young, B. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BOBBY YOUNG :
:
Appellant : No. 2034 EDA 2018
Appeal from the PCRA Order Entered May 29, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1008162-1997,
CP-51-CR-1008312-1997
BEFORE: STABILE, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MURRAY, J.: FILED JULY 03, 2019
Bobby Young (Appellant) appeals pro se from the order dismissing his
petition for writ of habeas corpus. For the reasons that follow, we quash this
appeal.
On June 4, 1998, at the docket numbers listed above, a jury found
Appellant guilty of three counts each of robbery of a motor vehicle, robbery,
possession of an instrument of crime, and criminal conspiracy. On October
23, 1998, the trial court sentenced Appellant to an aggregate term 12½ to 25
years of incarceration.
This Court affirmed Appellant’s judgment of sentence on May 1, 2000,
see Commonwealth v. Young, 759 A.2d 27 (Pa. Super. May 1, 2000)
(unpublished memorandum), and our Supreme Court denied his petition for
allowance of appeal on October 2, 2000. Appellant pursued no further
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appeals. Thus, his judgment of sentence became on January 2, 2001. 1 See
42 Pa.C.S.A. § 9545(b)(3) (stating that a judgment of sentence becomes final
at the conclusion of direct review or the expiration of the time for seeking the
review); U.S.Sup.Ct.R. 13 (providing that “[a] petition for a writ of certiorari
seeking review of a judgment of a lower state court that is subject to
discretionary review by the state court of last resort is timely when it is filed
with the Clerk within 90 days after entry of the order denying discretionary
review”).
In the interim, Appellant filed several unsuccessful petitions pursuant to
the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. On April
13, 2017, Appellant filed a petition for writ of hapeas corpus in which he
challenged the legality of his sentence. The trial court properly treated the
hapeas petition as an untimely serial PCRA petition. See Commonwealth v.
West, 938 A.2d 1034, 1043 (Pa. 2007) (stating that “the PCRA subsumes all
forms of collateral relief, including habeas corpus, to the extent a remedy is
available under such enactment”). On March 19, 2018, the PCRA court issued
notice of its intent to dismiss Appellant’s PCRA petition pursuant to
Pennsylvania Rule of Criminal Procedure 907. On May 29, 2018, the PCRA
____________________________________________
1 Ninety days, or December 31, 2000, was a Sunday, and the following day,
January 1, 2001, was a legal holiday. See 1 Pa.C.S.A. § 1908 (“Whenever
the last day of any such period shall fall on Saturday or Sunday, or on any
day made a legal holiday by the laws of this Commonwealth or of the United
States, such day shall be omitted from the computation.”).
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court formally dismissed Appellant’s PCRA petition as untimely because
Appellant filed his petition well over one year after his judgment of sentence
became final and he did not plead or prove one of the timeliness exceptions.
See 42 Pa.C.S.A. § 9545(b). The order dismissing Appellant’s PCRA petition
listed both docket numbers that are the subject of this appeal.
Prior to discussing the merits of Appellant’s underlying claim, we must
first address several procedural defects present in this appeal. On September
18, 2018, this Court issued a rule to show cause directing Appellant to explain
why we should not quash the appeal based on our Supreme Court’s decision
in 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”), and because
Appellant did not file his notice of appeal within 30 days of the date of the
order dismissing his PCRA petition. See Order – Rule to Show Cause, 9/18/18.
Appellant’s response to the rule to show cause, which was largely nonsensical,
failed to address these two procedural issues. See Response to Rule to Show
Cause, 12/6/18. By order dated February 1, 2019, this Court discharged the
rule to show cause and referred these issues to the merits panel. We address
each procedural defect in turn.
We begin with the procedural defect relating to Walker. The Official
Note to Rule 341 of the Pennsylvania Rules of Appellate Procedure provides,
in relevant part:
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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
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. Until recently, it was common practice for courts
of this Commonwealth to allow appeals to proceed, even if they failed to
conform with Rule 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).
In Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), however, 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.” Id. 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.
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Instantly, we must apply Walker because Appellant’s notice appeal,
which he dated June 29, 2018, was filed after the Walker decision. There is
no dispute that Appellant only filed one notice of appeal, despite the fact this
case involves two docket numbers. 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.
We also note that Appellant’s appeal is untimely. “Except as otherwise
prescribed by this rule, the notice of appeal required by Rule 902 (manner of
taking appeal) shall be filed within 30 days after the entry of the order from
which the appeal is taken.” Pa.R.A.P. 903(a). As this Court has emphasized:
Time limitations for taking appeals are strictly construed and
cannot be extended as a matter of grace. . . . Absent
extraordinary circumstances, this Court has no jurisdiction to
entertain an untimely appeal.
Commonwealth v. Burks, 102 A.3d 497, 500 (Pa. Super. 2014) (citations
omitted). Importantly, with respect to incarcerated pro se litigants, “the
prisoner mailbox rule provides that a pro se prisoner’s document is deemed
filed on the date he delivers it to prison authorities for mailing.”
Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa. Super. 2011).
Here, as in Burks, there are no extraordinary circumstances. The PCRA
court dismissed Appellant’s PCRA petition on May 29, 2018. Under Rule
903(a), Appellant had 30 days, or until June 28, 2018, to file his notice of
appeal. Although we are unable to ascertain precisely when Appellant
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“delivered his notice of appeal to prison authorities for mailing,” Appellant
dated the notice of appeal June 29, 2018, and it was postmarked July 2, 2018,
leading us to conclude that the appeal was untimely.
Accordingly, because this appeal does not conform with Walker or Rule
903(a), we are compelled to quash.
Appeal quashed.
Judge Stabile joins the memorandum.
P.J.E. Ford Elliott concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/3/19
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