Com. v. Millan, M.

• Court: Superior Court of Pennsylvania
• Decided: July 31, 2019
• Docket: 1697 EDA 2018
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

MIGUEL MILLAN

Appellant No. 1697 EDA 2018

Appeal from the Judgment of Sentence imposed November 21, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0015472-2009; CP-51-CR-0014355-2010

BEFORE: STABILE, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.: FILED JULY 31, 2019

Appellant, Miguel Millan, appeals from the judgment of sentence the

Court of Common Pleas of Philadelphia County imposed on November 21,

2014. Appellant challenges the discretionary aspects of his sentence. Upon

review, we quash the instant appeal.

The factual and procedural background of the instant appeal is not at

issue here. Briefly, on November 21, 2014, the trial court found Appellant to

be in violation of his probation at dockets 14355-2010 and 2419-2013. See

Trial Court Opinion, 8/17/18, at 1-4. Accordingly, on the same day, following

a hearing, the trial court sentenced Appellant to 5 to 10 years' imprisonment

at docket 14355-2010, followed by 10 years' probation at docket 2419-2013.

Id. J -S21010-19

Appellant filed a notice of appeal, challenging the sentence imposed on

November 21, 2014,1 and listing two trial court dockets: 14355-2010 and

15472-2009.2 This appeal followed.

Before we can entertain the merits of the instant appeal, we must

address the fact that Appellant filed a single notice of appeal with issues

relating to two different docket numbers. "The Official Note to Rule 341 was

amended in 2013 to provide clarification regarding proper compliance with

Ru1e341(a) . . . ." Commonwealth v. Walker, 185. A3d 969, 976 (Pa.

2018). Relevant to cases subsequent to the publication of Walker (June 1,

2018), Rule 341(a) requires that when a single order resolves issues arising

on more than one lower court docket, separate notices of appeal must be filed.

Failure to do so results in quashal of the appeal. See id. at 977.

Here, on June 11, 2018, Appellant filed one notice of appeal involving

two dockets. On July 27, 2018, we issued a rule to show cause why the appeal

should not be quashed under Walker. In response to the rule to show cause,

1After the imposition of sentence on November 21, 2014, Appellant filed a motion for reconsideration, which the trial court denied on December 30, 2014. No direct appeal was taken.

On February 20, 2018, Appellant filed a PCRA petition, seeking reinstatement nunc pro tunc of his appellate rights. The PCRA court granted the relief sought on June 4, 2018. Appellant promptly filed his appeal on June 11, 2018.

2 At docket number 15472-2009, following a violation of probation hearing, on June 25, 2014, the trial court sentenced Appellant to, inter a/ia, 1 to 2 years' incarceration, plus 5 years' consecutive probation.

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Appellant argued that he challenged the imposition of the term of

imprisonment (5 years) imposed at case 14355-2010. Accordingly, Appellant

requested that we allow the appeal to proceed with regard to case 14355-

2010. Additionally, Appellant requested to quash the appeal at case 15472-

2009 because no sentence was imposed on November 21, 2014 at that docket.

While Appellant may have mistakenly identified one of the dockets listed

in his notice of appeal, his error does not affect the outcome of the instant

matter. Walker's mandate is clear.3 Because the November 21, 2014

3 As noted, when a single order resolves issues arising on more than one lower court docket, separate notices of appeal must be filed for each docket involved. "The failure to do so [results] in quashal of the appeal." Walker, 185 A.3d 969. Under Walker, therefore, there are no exceptions to the rule and failure to comply with the rule results in quashal. The use of the word "quashal" as opposed to other potentially less drastic consequences leads us to believe that, under Walker, the error is of a jurisdictional nature, such that it affects our jurisdiction to entertain the appeal. "[Q]uashal generally is reserved for scenarios where the underlying order is interlocutory or untimely, or the appellate court lacks jurisdiction." In re C.S.M.F., 89 A.3d 670, 673 (Pa. Super. 2014). We also noted:

In Sahutsky v. H.H. Knoebel Sons, 782 A.2d 996, 1001 n.3 (Pa. 2001), our Supreme Court explained:

Quashal is usually appropriate where the order below was unappealable, see Toll v. Toll, 293 Pa.Super. 549, 439 A.2d 712 (1981) (court lacks jurisdiction - appeal interlocutory), the appeal was untimely, see Stotsenburg v. Frost, 465 Pa. 187, 348 A.2d 418 (1975), or the Court otherwise lacked jurisdiction, see Pa.R.C.P. 1972.

In re C.S.M.F., 89 A.3d at 673-74.

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sentencing order resolves issues arising from two dockets, Appellant was

required to file two notices of appeal. Because Appellant failed to do so, we

are constrained to quash the instant appeal.

Appeal quashed. Jurisdiction relinquished.

Judge Murray joins this memorandum.

President Judge Emeritus Ford Elliott notes dissent.

Judgment Entered.

.,

Jseph D.Seletyn, Prothonotary

Date: 7/31/19

The High Court continued that quashal would not be proper where a timely filed appeal stemmed from a final, appealable order that "the Superior Court had jurisdiction over ... and appellant [did] not articulate any other ground for quashal under Rule 1972(7)." Id. In contrast, the proper consequence of a procedural misstep that does not implicate finality, timeliness, or jurisdiction, is a waiver of the substantive claims that would be raised on appeal.

Id. at 674. -4