Com. v. Miller, J.

• Court: Superior Court of Pennsylvania
• Decided: January 16, 2020
• Docket: 536 MDA 2019
• Status: Unpublished

Opinion

J-S67020-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSHUA SHANE MILLER : : Appellant : No. 536 MDA 2019

Appeal from the PCRA Order Entered March 26, 2019 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0001161-2017, CP-40-CR-0001682-2016

BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

JUDGMENT ORDER BY DUBOW, J.: FILED JANUARY 16, 2020

Appellant, Joshua Shane Miller, appeals from the Order entered March

26, 2019, after the Luzerne County Court of Common Pleas dismissed his

Petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§

9541-9546. Appellant’s counsel has filed a “No Merit/Turner Finley1 Brief”

and an Application to Withdraw as Counsel. Upon review, we quash this appeal

pursuant to Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), and deny

counsel’s Motion to Withdraw as moot.

On October 24, 2018, Appellant entered guilty pleas at two different

docket numbers: Docket No. 1682-2016 (Possession of a Firearm Prohibited) ____________________________________________

* Former Justice specially assigned to the Superior Court.

1 Commonwealth v. Turner, 544 A.2d 927 (Pa. Super. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). J-S67020-19

and Docket No. 1161-2017 (Possession of a Controlled Substance Contraband

by Inmate). On the same date, the trial court sentenced Appellant for both

convictions to an aggregate term of 48 to 96 months of incarceration.

Appellant did not file a post-sentence motion or a direct appeal.

On April 6, 2018, Appellant filed a pro se PCRA Petition, listing both

Docket Nos. 1682-2016 and 1161-2017.2 On December 11, 2018, the court

appointed counsel, Leonard Gryskewicz, Esq.3 Attorney Gryskewicz filed a

Supplemental PCRA Petition, which also listed Docket Nos. 1682-2016 and

1161-2017. On March 26, 2019, the court held a PCRA hearing, and “denied

and dismissed [Appellant’s] PCRA [P]etition in its entirety.” N.T. PCRA

Hearing, 3/26/19, at 71.

On April 2, 2019, Appellant filed a counseled Notice of Appeal listing

Docket Nos. 1682-2016 and 1161-2017.4 Attorney Gryskewicz filed,

simultaneously with the Notice of Appeal, a Motion for the Appointment of

Substitute Appellate Counsel. The court thereafter appointed Matthew Kelly,

Esq., to represent Appellant in this appeal. Attorney Kelly filed an ordered

____________________________________________

2Appellant filed another pro se PCRA Petition on June 12, 2018, listing Docket Nos. 4285-09, 1682-2016, and 1161-2017.

3On November 27, 2018, the court initially appointed Jeffrey Yelen, Esq., as PCRA counsel.

4 Appellant filed only one Notice of Appeal in the lower court, which the court clerk noted in each of the dockets. The actual Notice of Appeal is contained only within the certified record pertaining to docket number 1682-2016.

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Pa.R.A.P. 1925(b) Statement, and the PCRA court issued an Opinion pursuant

to Pa.R.A.P. 1925(a).

Appellate counsel filed a “No Merit/Turner Finley Brief” and Application

to Withdraw as Counsel with this Court. Appellant has not filed a response.

In Commonwealth v. Walker, the Supreme Court of Pennsylvania

addressed the issue of filing separate notices of appeal when a single order

resolves issues arising on more than one trial court docket, and held that

“prospectively, where a single order resolves issues arising on more than one

docket, separate notices of appeal must be filed for each case. . . . The failure

to do so will result in quashal of the appeal.” 185 A.3d at 971, 977 (footnote

omitted).

Because Appellant filed his appeal after the Supreme Court decided

Walker, this Court issued an Order on May 17, 2019, directing Appellant to

show cause why the appeal should not be quashed pursuant to Walker.

Appellant’s counsel replied that Walker is distinguishable because that case

involved four different criminal defendants where the Commonwealth filed one

notice of appeal, whereas in this case, Appellant filed one Notice of Appeal

listing the two docket numbers included in the sentencing order. The Court

discharged the show-cause Order on June 11, 2019.

It is undisputed that Appellant filed a single Notice of Appeal from an

Order filed at two docket numbers. Because Appellant filed his Notice of Appeal

after our Supreme Court’s decision in Walker, we must quash this appeal.

-3- J-S67020-19

See Commonwealth v. Williams, 206 A.3d 573, 576 (Pa. Super. 2019)

(quashing non-compliant notice of appeal filed after Walker).

Appeal quashed. Application to Withdraw as Counsel denied as moot.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/16/2020

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