Com. v. Perez, J.

Opinion

J-S04026-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSE MIGUEL PEREZ : : Appellant : No. 1862 MDA 2018

Appeal from the PCRA Order Entered September 26, 2018 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0001497-1991, CP-36-CR-0001533-1991

BEFORE: SHOGAN, J., OTT, J., and STEVENS, P.J.E.

MEMORANDUM BY OTT, J.: FILED APRIL 23, 2019

Jose Miguel Perez appeals, pro se, from the order entered September

26, 2018, in the Lancaster County Court of Common Pleas, dismissing his

serial petition for collateral relief filed pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.1 Perez seeks relief from the

judgment of sentence of an aggregate term of 24-80 years’ imprisonment,

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 Former Justice specially assigned to the Superior Court.

1 Perez titled his pleading as a petition for a writ of habeas corpus. Our review of the record demonstrates that the court below correctly deemed the pleading to be a PCRA petition, as his challenge to the legality of the sentence is well within the ambit of the PCRA. See Writ of Habeas Corpus, 5/14/2018, at 2- 5; PCRA Court Memorandum and Order, 11/13/2018, at 1; see also Commonwealth v. Burkett, 5 A.3d 1260, 1274 (Pa. Super. 2010) (citations omitted) (“[I]t is well established that pursuant to Pennsylvania law, the PCRA subsumes the writ of habeas corpus unless the claim does not fall within the ambit of the PCRA statute.”); 42 Pa.C.S.A. §§ 9543(a)(2)(vii). J-S04026-19

imposed on June 4, 1993, following his jury conviction of one count of delivery

of a controlled substance, and three counts of possession with intent to deliver

a controlled substance, on two separate dockets. On appeal, he asserts the

PCRA court erred in dismissing his PCRA petition as untimely. For the reasons

below, we are constrained to quash this appeal.

The parties are well acquainted with the facts and procedural history

underlying this appeal and we need not recite them herein. In summary, on

July 9, 1992, a jury convicted Perez of the aforementioned charges. On June

4, 1993, the trial court pronounced the judgment of sentence. On May 2,

1994, this Court affirmed the judgment of sentence. Commonwealth v.

Perez, 647 A.2d 266 (Pa. Super. 1994) (unpublished memorandum). Perez

did not seek leave to appeal to the Pennsylvania Supreme Court.

Subsequently, Perez filed approximately six failed petitions for PCRA relief as

well as unsuccessfully seeking relief in the federal courts.

Perez filed the instant petition on May 14, 2018. On August 24, 2018,

the PCRA court issued notice of its intent to dismiss the petition pursuant to

Pennsylvania Rule of Criminal Procedure 907(1). On September 26, 2018, the

PCRA court dismissed the petition as untimely. This timely appeal listing both

lower court docket numbers followed.2

2On October 1, 2018, subsequent to the dismissal of Perez’s petition, he filed a motion to amend his petition signed September 25, 2018. On October 9, 2018, Perez filed a response to the Rule 907 notice, signed October 4, 2018.

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On appeal, Perez contends the PCRA court erred in treating his pleading

as an untimely PCRA petition and dismissing it. “In reviewing the denial of

PCRA relief, we examine whether the PCRA court’s determination is supported

by the record and free of legal error.” Commonwealth v. Mitchell, 141 A.3d

1277, 1283–1284 (Pa. 2016) (internal punctuation and citation omitted).

However, before we may consider either the PCRA court’s request for a

remand or the timeliness of the PCRA petition, we must first determine

whether Perez properly filed the notice of appeal.3 As noted supra, Perez’s

single notice of appeal listed both docket numbers. See Notice of Appeal,

10/19/2018. The official note to Pennsylvania Rule of Appellate Procedure

341 states that separate notices of appeal must be filed when “one or more

orders resolves issues arising on more than one docket or relating to more

than one judgment.”4 Despite this, the courts of this Commonwealth, until

recently, have allowed appeals to proceed even if the appellant listed multiple

Perez filed his notice of appeal on October 19, 2018. The PCRA court did not order him to file a concise statement of errors complained of on appeal. On November 13, 2018, the PCRA court issued a memorandum and order requesting that we remand this matter so that it might consider Perez’s amended petition and response to the Rule 907 notice. PCRA Court Memorandum and Order, 11/13/2018, at 2.

3 On December 7, 2018, this Court issued Perez a rule to show cause why the appeal should not be quashed in light of Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). Perez did not file a response, and we discharged the rule, so the merits panel could decide the issue.

4 Pa.R.A.P. 341, Official Note.

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dockets on one notice of appeal. See In Interest of P.S., 158 A.3d 643 (Pa.

Super. 2017), appeal denied, 174 A.3d 1029 (Pa. 2017).

However, on June 1, 2018, in Commonwealth v. Walker, 185 A.3d

969 (Pa. 2018), the Pennsylvania Supreme Court held that “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. The Court explained “[t]he

Official Note to Rule 341 provides a bright-line mandatory instruction to

practitioners to file separate notices of appeal” and “[t]he failure to do so

requires the appellate court to quash the appeal.” Id. at 976-977.

Recognizing, however, that “decades” of prior case law, while disapproving of

the practice, seldom resulted in quashal of the appeal, the Walker Court

declined to quash the appeal before it. Nevertheless, the Court held:

While we do not quash the present appeal in this instance, in future cases Rule 341(a) will, in accordance with its Official Note, require that when a single order resolves issues arising on more than one lower court docket, separate notices of appeal must be filed. The failure to do so will result in quashal of the appeal.

Id. at 977 (footnote omitted).

In the case before us, Perez filed a single notice of appeal, listing both

trial court docket numbers at issue, on October 19, 2018. Because he filed

this notice after the decision in Walker, Perez was required to file separate

notices of appeal for each number. Consequently, pursuant to the mandate

in Walker, supra, we are constrained to quash this appeal.

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Appeal quashed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/23/2019

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