Com. v. Miles, M.

• Court: Superior Court of Pennsylvania
• Decided: April 29, 2019
• Docket: 1201 WDA 2018
• Status: Unpublished

Opinion

J-S15034-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : MALKI MILES : : Appellant : No. 1201 WDA 2018

Appeal from the Judgment of Sentence Entered September 7, 2016 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0004956-2014, CP-02-CR-0014637-2014

BEFORE: GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.

JUDGMENT ORDER BY GANTMAN, P.J.E.: FILED APRIL 29, 2019

Appellant, Malki Miles, appeals nunc pro tunc from the amended

judgment of sentence entered in the Allegheny County Court of Common

Pleas, following the revocation of his probation. Based on our Supreme

Court’s decision in Commonwealth v. Walker, ___ Pa. ___, 185 A.3d 969

(2018), we must quash the appeal.

The relevant facts and procedural history of this case are as follows. On

August 25, 2014, Appellant entered a negotiated guilty plea at Docket No.

4956-2014 to aggravated assault, escape, retail theft, and resisting arrest.

That same day, the court sentenced Appellant to an aggregate term of 4 years’

probation and participation in Mental Health Court (“MHC”). On March 3,

2015, Appellant entered a negotiated guilty plea at Docket No. 14637-2014

to burglary, theft, and receiving stolen property. That same day, the court ____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S15034-19

sentenced Appellant to an aggregate term of 11½ to 23 months’ incarceration,

plus 4 years’ probation and participation in MHC. At a MHC review hearing on

July 20, 2015, the court heard testimony indicating Appellant had violated the

terms of his probation. After a probation violation hearing on September 15,

2015, the court revoked probation at both docket numbers. The court

resentenced Appellant on July 19, 2016. At Docket No. 4956-2014, the court

imposed 1 to 2 years’ incarceration, plus 1 year probation. At Docket No.

14637-2014, the court imposed 2 to 4 years’ incarceration, consecutive to the

prison term at Docket No. 4956-2014, plus 1 year probation, concurrent to

the probation term at Docket No. 4956-2014, for an aggregate sentence of 3

to 6 years’ incarceration, plus 1 year probation. Appellant filed a timely post-

sentence motion at both docket numbers on July 29, 2016. On September 7,

2016, the court entered an amended sentencing order at Docket Nos. 4956-

2014 and 14637-2014, directing concurrent, rather than consecutive,

incarceration terms. Thus, Appellant received an aggregate amended

sentence of 2 to 4 years’ incarceration, plus 1 year probation.

On July 13, 2017, Appellant timely filed his first pro se petition brought

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.

The PCRA court subsequently appointed counsel, who filed an amended PCRA

petition, requesting reinstatement of Appellant’s direct appeal rights nunc pro

tunc as to the September 7, 2016 amended judgments of sentence. The PCRA

court reinstated Appellant’s direct appeal rights nunc pro tunc on August 3,

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2018. On August 21, 2018, Appellant filed a timely notice of appeal nunc pro

tunc at both Docket Nos. 4956-2014 and 14637-2014, from the September 7,

2016 amended judgments of sentence. The court ordered Appellant on August

24, 2018, to file a concise statement of errors complained of on appeal per

Pa.R.A.P. 1925(b); Appellant timely complied on September 13, 2018.

Preliminarily, on June 1, 2018, the Walker Court held that the common

practice of filing a single notice of appeal from an order involving more than

one docket would no longer be tolerated, because the practice violates

Pa.R.A.P. 341, which requires the filing of “separate appeals from an order

that resolves issues arising on more than one docket.” Walker, supra at __,

185 A.3d at 977. The failure to file separate appeals under these

circumstances “requires the appellate court to quash the appeal.” Id.

Instantly, Appellant filed a single notice of appeal from the amended

judgments of sentence entered at two separate docket numbers. Appellant’s

single notice of appeal was filed on August 21, 2018, which postdates and is

therefore bound by the Walker decision, and must be quashed.

Appeal quashed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

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Date: 4/29/2019

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