Com. v. Gayan, B.

• Court: Superior Court of Pennsylvania
• Decided: August 14, 2019
• Docket: 1527 MDA 2018
• Status: Unpublished

Opinion

J-S22024-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRIAN D. GAYAN : : Appellant : No. 1527 MDA 2018

Appeal from the PCRA Order Entered August 16, 2018 In the Court of Common Pleas of Centre County Criminal Division at No(s): CP-14-CR-0000440-2006, CP-14-CR-0001269-2005

BEFORE: SHOGAN, J., DUBOW, J., and PELLEGRINI*, J.

MEMORANDUM BY DUBOW, J.: FILED AUGUST 14, 2019

Appellant, Brian D. Gayan, appeals from the Order entered August 16,

2018, dismissing his second Petition for collateral relief filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we

quash this appeal.

In October 2006, Appellant pleaded guilty to six counts of Indecent

Assault and sixty-three counts of Sexual Abuse of Children.1 Trial Ct. Op. and

Order, filed 8/16/18, at 1. Following a hearing in April 2007, the trial court

determined Appellant to be a sexually violent predator (SVP) and sentenced

him to six and one-half to thirteen years of incarceration. Id. Appellant timely

appealed but subsequently withdrew his appeal. See Commonwealth v.

Gayan, 977 MDA 2007, Notice of Discontinuance, 11/20/07. ____________________________________________

1 See 18 Pa.C.S. §§ 3126(a)(7); 6312(d), respectively.

* Retired Senior Judge assigned to the Superior Court. J-S22024-19

In November 2007, Appellant filed his first Petition for collateral relief,

asserting ineffective assistance of counsel. Commonwealth v. Gayan, 1989

MDA 2008, unpublished memorandum at 2 (Pa. Super. filed April 6, 2010).

The PCRA court denied relief; Appellant appealed; and this Court affirmed.

Id. at 1. The Pennsylvania Supreme Court denied Appellant’s Petition for

allowance of appeal. Commonwealth v. Gayan, 4 A.3d 157 (Pa. 2010).

In March 2018, Appellant pro se filed a second Petition for collateral

relief. The PCRA court appointed counsel, who thereafter filed an Amended

Petition. Amended Petition, 3/19/18. According to Appellant, he is serving a

sentence in excess of the lawful maximum and in violation of the ex post facto

provisions of the United States Constitution and the Pennsylvania Constitution.

Id. at 2 ¶ 15.2 Following briefing and argument, the PCRA court denied

Appellant relief. ____________________________________________

2 In light of our disposition, we need not examine Appellant’s substantive claims in detail. Appellant notes that his convictions predated the enactment of the Pennsylvania Sex Offender Registration and Notification Act (SORNA), 42 Pa.C.S. §§ 9799.10-9799.41 (effective 12/20/2012) and its recent amendments. See H.B. 1952, 202 Gen. Assemb., Reg. Sess. (Pa. 2018), Act 29 of 2018; H.B. 631, 202 Gen. Assemb., Reg. Sess. (Pa. 2018), Act 10 of 2018. Appellant asserts that the sex offender registration requirements imposed upon him are punitive and unlawful. Amended Petition at 2-4 ¶¶ 16- 18.

The Pennsylvania Supreme Court determined that SORNA’s registration provisions are punitive and that retroactive application of SORNA’s registration provisions violates the federal and state ex post facto clauses. Commonwealth v. Muniz, 164 A.3d 1189, 1193 (Pa. 2017); but see Commonwealth v. Lacombe, 35 MAP 2018 (Pa. 2018) (granting review, in its original jurisdiction, to determine whether Acts 10 and 29 are

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Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

Statement. The PCRA court issued a responsive statement, directing our

attention to its prior Opinion.

Appellant raises the following issue on appeal:

[1.] Whether the [PCRA] court erred in denying PCRA relief and finding that Act 10 of 2018 is constitutional because Act 10 is plainly and clearly in violation of the Pennsylvania and United States Constitutions in that it imposes punishment [that] exceeds the statutory maximum and requires registration and notification provisions [that] are constitutionally excessive in violation of the Eighth Amendment’s proscription against cruel and unusual punishment and the corresponding proscription in Article 1, Section 13 of the Pennsylvania Constitution.

Appellant’s Br. at 4. For the following reasons, however, we do not address

this claim.

Appellant timely filed a Notice of Appeal that identifies multiple trial

court docket numbers. In Commonwealth v. Walker, 185 A.3d 969 (Pa.

2018), the Pennsylvania Supreme Court held that “when a single order

resolves issues arising on more than one lower court docket, separate notices

of appeal must be filed.” Id. at 977 (citing the Official Note of Appellate

Procedure 341(a)). This is a bright-line, mandatory instruction. Id. at 976-

77; Commonwealth v. Nichols, 208 A.3d 1087 (Pa. Super. 2019) (quashing

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constitutional). Claims challenging application of these registration provisions are cognizable under the PCRA, as they implicate the legality of a petitioner’s sentence, but they remain subject to PCRA’s timeliness requirements. Commonwealth v. Greco, 203 A.3d 1120, 1123-24 (Pa. Super. 2019).

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appeal from single order denying PCRA relief where appellant filed a notice of

appeal containing three trial court docket numbers).

In October 2018, this Court issued a Rule to show cause why the appeal

should not be quashed pursuant to Walker. Order, 10/5/18. Appellant timely

responded, asserting that he had filed a Notice at each docket. Appellant’s

Response, 10/8/18. Accordingly, the Court referred the Walker issue to the

merits panel. Order, 10/22/18.

The certified records of Appellant’s criminal dockets each contain a

Notice of Appeal. However, the Notice appearing in CP-14-CR-0001269-2005

is a photocopy of the original, which itself appears in the certified record of

CP-14-CR-0000440-2006. Thus, Appellant did not create separate Notices,

each documenting individually and discretely his intent to appeal the

disposition of each criminal docket. In our view, this fact alone should not

trigger the Walker rule. However, compounding Appellant’s procedural error,

the Centre County Clerk of Courts forwarded a single Notice of Appeal to the

Prothonotary of this Court, which in turn issued a Docketing Statement

identifying only one of Appellant’s two criminal dockets, CP-14-CR-0001269-

2005. Appellant then completed and returned this Docketing Statement

without correction. Docketing Statement, 10/2/18.

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Based on Appellant’s filing errors, we conclude that Appellant has not

properly appealed from the PCRA court’s Order. Consistent with Walker and

Nichols, we are constrained to quash the appeal.3

Appeal quashed.

Judge Shogan joins the memorandum.

Judge Pellegrini notes dissent.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 08/14/2019

3 We note that Appellant may be entitled to collateral relief. See, e.g., Commonwealth v. Halley, 870 A.2d 795 (Pa. 2005) (finding per se ineffectiveness where counsel failed to file a Pa.R.A.P. 1925(b) statement, thereby waiving all issues); Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999) (finding per se ineffectiveness where counsel failed to file a direct appeal, despite defendant’s request).

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