Commonwealth v. Nichols, 1762 EDA 2018

208 A.3d 1087

COMMONWEALTH of Pennsylvania

v.Mark Allen NICHOLS, Appellant

No. 1762 EDA 2018

Superior Court of Pennsylvania.

Submitted March 4, 2019

Filed April 24, 2019

Robert Eyer, Easton, for appellant.

Rebecca J. Kulik, Assistant District Attorney, and Katharine R. Kurnas, Assistant District Attorney, Easton, for Commonwealth, appellee.

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

OPINION BY MURRAY, J.:

Mark Allen Nichols (Appellant) appeals from the order denying his first petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541 - 9546, following an evidentiary hearing. Based upon our Supreme Court's recent decision in Commonwealth v. Walker , 185 A.3d 969 (Pa. 2018), we quash the appeal.

On January 30, 2017, Appellant, represented by appointed counsel Alexander Karam, Jr., Esq., entered into a negotiated guilty plea on the above three dockets to two charges of possession with intent to deliver, one charge of persons not to possess firearms, one charge of accident involving damage, and one charge of driving while license suspended – DUI related.¹ That same day, Appellant received a negotiated sentence of 54 to 108 months of incarceration. Appellant was colloquied during the guilty plea and at sentencing regarding the advice of counsel and the voluntariness of his plea. See Notes of Testimony, 1/30/17, at 1-12.

Appellant did not file a direct appeal, but on January 5, 2018, timely filed a pro se PCRA petition asserting that plea counsel was ineffective. PCRA counsel filed an amended petition on Appellant's behalf on April 3, 2018. Following hearings on April 6, 2018, and April 13, 2018, the PCRA court on May 11, 2018, entered an order denying relief; that order contained all three docket numbers in the caption. Appellant filed this timely appeal; the notice of appeal also contains the three trial court docket numbers.

On July 27, 2018, this Court issued a rule to show cause as to why the appeal should not be quashed pursuant to Com monwealth v. Walker , 185 A.3d 969 (Pa. 2018) (holding that "where a single order resolves issues arising on more than one docket, separate notices of appeal must be filed for each of those cases."). In response, Appellant argued that this appeal should not be quashed because Walker was not the law when the underlying order was entered on May 11, 2018; the issues raised at all three dockets are identical; there is no prejudice to the Commonwealth; the Commonwealth has not objected; quashal would "entirely deny" appellate review; Pa.R.A.P. 341(a) does not explicitly instruct the filing of separate appeals; the "evils designed to be eliminated" by Pa.R.A.P. 341(a) are not present in this case; and quashal "would be contrary to decades of case law." Answer to Show Cause Order, 8/6/18, at 5-7. On October 2, 2108, this Court entered an order referring the Walker issue to this merits panel.

On appeal, Appellant presents two issues:

I. Whether the appeal should be quashed for failure to file separate Notices of Appeal when a single Order resolved all issues arising on more than one trial court docket?

II. Whether the PCRA court erred in denying the requested relief where ineffective assistance of counsel caused [Appellant] to enter an involuntary and unknowing plea?

Appellant's Brief at 4.

In his first issue, Appellant repeats his response to our rule to show cause as to why the appeal should not be quashed. See Appellant's Brief at 8-13 (arguing that the underlying order was entered prior to Walker on May 11, 2018; the issues raised at all three dockets are identical; there is no prejudice to the Commonwealth and the Commonwealth has not objected; quashal would "entirely deny" appellate review; Pa.R.A.P. 341(a) does not explicitly instruct the filing of separate appeals; the "evils designed to be eliminated" by Pa.R.A.P. 341(a) are not present in this case; and quashal "would be contrary to decades of case law."). Upon review, we cannot agree.

It is undisputed that Appellant filed a single notice of appeal with issues that relate to three different lower court docket numbers. The Official Note to Rule 341 of the Pennsylvania Rules of Appellate Procedure provides:

Where, however, one or more orders resolves issues arising on more than one docket or relating to more than one judgment, separate notices of appeals must be filed . Commonwealth v. C.M.K. , 932 A.2d 111, 113 & n.3 (Pa. Super. 2007) (quashing appeal taken by single notice of appeal from order on remand for consideration under Pa.R.Crim.P. 607 of two persons' judgments of sentence).

Pa.R.A.P. 341, Official Note (emphasis added).

As Appellant recognizes, courts of this Commonwealth historically allowed appeals to proceed, even if they failed to comply with Pa.R.A.P. 341. See , e.g. , In the Interest of P.S. , 158 A.3d 643, 648 (Pa. Super. 2017) (noting common practice to allow appeals to proceed if the issues involved are nearly identical, no...