Com. v. Robinson, D.

Opinion

J-S42003-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DONNELLE ROBINSON : : Appellant : No. 1739 EDA 2019

Appeal from the PCRA Order Entered May 15, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005713-2015, CP-51-CR-0005736-2015, CP-51-CR-0006248-2015

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DONNELLE ROBINSON : : Appellant : No. 1740 EDA 2019

Appeal from the PCRA Order Entered May 15, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005713-2015, CP-51-CR-0005736-2015, CP-51-CR-0006248-2015

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DONNELLE ROBINSON : : Appellant : No. 1741 EDA 2019

Appeal from the PCRA Order Entered May 15, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005713-2015, J-S42003-20

CP-51-CR-0005736-2015, CP-51-CR-0006248-2015

BEFORE: PANELLA, P.J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, P.J.: FILED DECEMBER 04, 2020

Appellant, Donelle Robinson, appeals from the order dismissing his first

petition filed pro se pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541- 9546. The PCRA petition involved three separate lower

court docket numbers. This Court previously issued a rule to show cause why

Appellant’s appeal should not be quashed pursuant to Commonwealth v.

Walker, 185 A.3d 969, 977 (Pa. 2018), which adopted a bright-line rule that

separate notices of appeal must be filed when a single order resolves issues

arising on more than one lower court docket. Although we now conclude that

Walker does not require the Court to quash the appeal, we nonetheless find

that the issues Appellant raises in the appeal are waived and therefore fail to

provide him with any basis for relief. Accordingly, we affirm.

On February 14, 2015, Appellant was arrested and charged with multiple

counts of robbery, aggravated assault, possessing an instrument of crime

(“PIC”) and an array of related offenses in connection with a string of robberies

that took place in February 2015. The various counts were docketed at CR-

5713-2015, CR-5736-2015, CR-5737-2015 and CR-5738-2015. These four

dockets were subsequently consolidated for purposes of trial.

Following a twelve-day jury trial, the jury returned with a partial verdict.

The jury found Appellant guilty of three counts of robbery and one count of

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PIC at docket number CR-5736-2015. However, the jury deadlocked on the

remaining charges at docket number CR-5736-2015. It also deadlocked on all

the charges at docket numbers CR-5713-2015, CR-5737-2015 and CR-5738-

2015. The trial court declared a mistrial as to the deadlocked charges.

On August 6, 2018, Appellant entered into a negotiated guilty plea with

the Commonwealth. Appellant pled guilty to certain charges for which the jury

did not return a verdict, namely robbery and aggravated assault, at docket

number CR-5713-2015. The remaining charges at docket numbers CR-5713-

2015 and CR-5736-2015 were nolle prossed, along with all the charges at

docket numbers CR-5737-2015 and CR-5738-2015. As part of the plea,

Appellant also pled guilty to burglary and criminal conspiracy for a burglary

he committed on December 17, 2014. The burglary and conspiracy charges

were docketed at CR-6248-2015.

Pursuant to the plea agreement, the trial court sentenced Appellant on

the same date to an aggregate term of imprisonment of 15 to 30 years for the

counts on all three docket numbers. Specifically, at docket number CR-5736-

2015, the court sentenced Appellant to ten to 20 years’ imprisonment for each

of the robbery charges and two to four years’ imprisonment on the PIC charge.

At docket number CR-5713-2015, the trial court sentenced Appellant to ten

to 20 years’ imprisonment for the robbery count and five to ten years’

imprisonment for the aggravated assault count, with the aggravated assault

sentence to run consecutively to the robbery sentence. Appellant was also

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sentenced to ten to 20 years’ imprisonment both for the burglary and for the

criminal conspiracy counts at docket number CR-6248-2015. With the

exception of the aggravated assault charge, the court ordered all of the

sentences to run concurrently, leaving Appellant with an aggregate term of

imprisonment totaling 15 to 30 years. The trial court also added a term of one

year of probation to run consecutively to the prison sentence.

Appellant did not file post-sentence motions nor did he request leave to

withdraw his guilty plea. He did not file a direct appeal. Instead, on October

16, 2018, Appellant filed a timely pro se PCRA petition. In the PCRA petition,

Appellant alleged trial counsel had been ineffective for failing to sufficiently

explain his sentence to him. He complained that he did not understand what

cases he was going to be sentenced for and whether his sentences were

concurrent.

The PCRA court appointed counsel, who subsequently filed a petition to

withdraw as well as a no-merit letter pursuant to Commonwealth v. Turner,

544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.

Super. 1988) (en banc). In his letter, counsel asserted that he had reviewed

the case and found no issues of arguable merit. Counsel specifically addressed

Appellant’s claim that trial counsel had not explained Appellant’s sentence to

him and concluded that any such claim was completely belied by the oral

colloquy given to, and the written colloquies signed by, Appellant. Appellant

did not respond to the Turner/Finley letter.

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

pursuant to Pa.R.Crim.P. 907, and Appellant also did not respond to that

notice. On May 15, 2019, the PCRA court formally dismissed the PCRA petition

as to all three docket numbers and granted counsel’s petition to withdraw.

Appellant timely filed three pro se notices of appeal. All three notices of

appeal contained all three docket numbers from which Appellant was

appealing: CR-6248-2015, CR-5736-2015, and CR-5713-2015. The PCRA

court appointed new counsel to represent Appellant on appeal. It also directed

Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on

appeal. Appellant complied, and the PCRA court issued a Pa.R.A.P. 1925(a)

opinion in response.

Meanwhile, this Court assigned a docket number to each notice of appeal

and issued three separate orders for a rule to show cause why the appeal at

each docket number should not be quashed pursuant to Walker. Appellate

counsel did not respond to any of the rule-to-show-cause orders. On August

21, 2019, we issued an order at each docket number discharging the rule-to-

show-cause order and referring resolution of the Walker issue to the merits

panel.

Several months later, in March of 2020, appellate counsel filed an

“application to remand with permission to file [the notices of appeal] on

separate docket numbers.” In the application, appellate counsel acknowledged

that the pro se notices of appeal filed by Appellant were defective under

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Commonwealth v. Creese, 216 A.3d 1142 (Pa. Super. 2019), which held

that a notice of appeal may contain only one docket number. Counsel

conceded she should have remedied the defective notices of appeal sooner

but explained that she had been dealing with a difficult pregnancy and the

subsequent medical needs of her newborn child. In order to avoid quashal

pursuant to Creese, counsel sought leave from this Court to refile the notices

of appeal with separate docket numbers. This Court again issued an order

deferring a decision on the application to the panel of the Court assigned to

decide the merits of the appeal.

In their briefs to this Court, neither Appellant nor the Commonwealth

offer any argument as to whether we must quash Appellant’s appeals pursuant

to Walker except for the Commonwealth’s single statement in a footnote that

it takes no position on the matter. However, we note that after appellate

counsel filed her application for remand, an en banc panel of this Court

revisited Creese in Commonwealth v. Jerome Johnson, 236 A.3d 1141

(Pa. Super. 2020) (en banc). In doing so, this Court explicitly overruled

Creese to the extent that Creese held that Walker required our Court to

quash appeals when an appellant, who is appealing from multiple docket

numbers, files notices of appeal with all of the docket numbers listed on each

notice of appeal. See Jerome Johnson, 236 A.3d at 1148.

An en banc panel of this Court again addressed the issue of notices of

appeal containing multiple docket numbers in Commonwealth v. Rebecca

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Johnson, 236 A.3d 63 (Pa. Super. 2020) (en banc). In Rebecca Johnson,

the appellant appealed from an order dismissing her PCRA petition to three

different trial court docket numbers by filing three separate notices of appeal

with all three docket numbers on each of the filings. Citing to our recent

decision in Jerome Johnson, this Court held that the fact that the appellant

used multiple docket numbers on her notices of appeal was irrelevant and did

not invalidate the appeal. See Rebecca Johnson, 236 A.3d at 66. The Court

determined that because the appellant had filed three separate notices of

appeal, she had complied with Walker in perfecting her appeals and there

was therefore no need to quash them. See id.

Like the appellant in Rebecca Johnson, Appellant appealed the order

dismissing his PCRA petition to three different trial court docket numbers by

filing three separate notices of appeal with all three docket numbers on each

filing.1 Based on Rebecca Johnson, Appellant’s notices of appeal do not

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1 The record supports the conclusion that Appellant filed three separate notices of appeal. The notices of appeal are not identical in that there is a variance in either the information on the notice of appeal or the placement of the date stamp recording that the notice of appeal was received on June 12, 2019. Even if Appellant had only filed a single notice of appeal, we still would find that quashal is improper. The order of the PCRA court informing Appellant of his appellate rights related to the dismissal of his PCRA petition lists all three docket numbers and explicitly states that Appellant had 30 days to file “an appeal.” PCRA Court Order, 5/15/19. We have previously refused to quash an appeal based on Walker when an appellant files a single notice of appeal with multiple docket numbers when the order informing the appellant of his appeal rights provided that he had 30 days to file “an appeal.” See Commonwealth v. Larkin, 235 A.3d 350, 354 (Pa. Super. 2020) (en banc). As such, even if

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violate Walker and we therefore deny the application to remand to refile the

notices of appeal as unnecessary, and proceed to consider the claims raised

by Appellant in his appeal.

In the appeal, Appellant completely abandons the sole claim he raised

in his PCRA petition that trial counsel was ineffective for failing to explain his

sentence to him. Therefore, that issue is waived. See Commonwealth v.

Bennett, 517 A.2d 1248, 1250 n.4 (Pa. 1986) (stating that an issue raised in

a collateral petition but not presented on appeal has been abandoned).2

Instead, Appellant presents the following single issue for our review:

Did the PCRA court incorrectly dismiss the PCRA petition without conducting an evidentiary hearing into trial counsel’s failure to file an appeal following [Appellant’s] sentencing?

Appellant’s Brief at 7.

Appellant goes on to argue, in essence, that trial counsel was per se

ineffective for failing to file a direct appeal and the PCRA court should have

Appellant had filed only a single notice of appeal with multiple docket numbers, we would refuse to quash the appeal pursuant to Larkin. 2 Although this issue is waived, we note that Appellant’s signed written guilty plea colloquy at CP-5713-2015 specifically states that the robbery count and the aggravated assault count would run consecutively to each other. See Written Guilty Plea Colloquy for CP-5713-2015, 8/6/18, at 1. At Appellant’s oral colloquy and sentencing hearing, Appellant stated that he understood he was being sentenced to an aggregate term of imprisonment of 15 to 30 years and that he had discussed and understood the written plea colloquies with counsel. See N.T., 8/6/18, at 11, 12, 16. The trial court specifically reiterated that Appellant was being sentenced to a consecutive term of five to ten years for the aggravated assault count and Appellant stated that he understood that sentence. See id. at 30, 33.

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held an evidentiary hearing on that claim. However, as both the

Commonwealth and the PCRA court note, Appellant did not state at any point

in his PCRA petition that he had instructed trial counsel to file a direct appeal

or otherwise raise a claim related to trial counsel’s ineffectiveness for failing

to file a direct appeal in his PCRA petition. The PCRA court was therefore never

presented with this claim, and it is waived. See Commonwealth v.

Washington, 927 A.2d 586, 601 (Pa. 2007) (stating that any claim not raised

in the PCRA petition is waived and not cognizable on appeal); Pa.R.A.P. 302(a)

(providing that any issue not raised in the lower court is waived and cannot

be raised for the first time on appeal).

Appellant also maintains for the first time on appeal, however, that PCRA

counsel was ineffective for filing a Turner/Finley letter instead of amending

the PCRA petition to include a claim that trial counsel was ineffective for failing

to file a direct appeal. He essentially contends that PCRA counsel should have

surmised that Appellant wanted trial counsel to file a direct appeal based on

pro se correspondence Appellant sent to the trial court following his

sentencing. This claim is waived for multiple reasons.

In the first instance, Appellant’s claim challenging PCRA counsel’s

ineffectiveness is waived as it is not fairly encompassed by Appellant’s

statement of the question involved, which speaks to the ineffectiveness of trial

counsel, not PCRA counsel. See Pa. R.A.P. 2116(a). Additionally, Appellant’s

summary of the argument does not contain any reference to PCRA counsel’s

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ineffectiveness, and his claim is waived for that reason as well. See Pa. R.A.P.

2118.

Even if Appellant’s claim challenging the ineffectiveness of PCRA counsel

was not waived for failure to comply with the Rules of Appellate Procedure,

we still could not review it on appeal as this Court has held that a PCRA

petitioner cannot assert claims of PCRA counsel’s ineffectiveness for the first

time on appeal. See Commonwealth v. Henkel, 90 A.3d 16, 30 (Pa. Super.

2014) (en banc). As the Commonwealth points out, Appellant could have

challenged PCRA counsel’s representation in the PCRA court in response to the

Turner/Finley letter or in response to the PCRA court’s Pa.R.Crim.P. 907

notice of intent to dismiss his PCRA petition, but he did not do so. Instead,

Appellant raised his challenge to PCRA counsel’s effectiveness for the first time

on appeal, and it is therefore waived. See Commonwealth v. Pitts, 981 A.2d

875, 880 n.4 (Pa. 2009) (stating that the appellant’s “failure, prior to his PCRA

appeal, to argue PCRA counsel’s ineffectiveness for not raising the direct

appeal issue results in waiver of the issue of PCRA counsel’s ineffectiveness”).

Order affirmed. Application to Remand denied.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/4/20

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