J-S12030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOHN E. SIMPSON                            :
                                               :
                       Appellant               :   No. 1018 MDA 2018


         Appeal from the Judgment of Sentence entered July 29, 2016
     In the Court of Common Pleas of Luzerne County Criminal Division at
                       No(s): CP-40-CR-0000936-2015,
             CP-40-CR-0000942-2015, CP-40-CR-0001643-2016


BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.:                       FILED: AUGUST 19, 2019

       Appellant appeals from Judgment of Sentence entered July 29, 2016,

after the Luzerne County Court of Common Pleas reinstated his direct appeal

rights nunc pro tunc on June 7, 2018.1 Appellant’s counsel has filed a “No

merit/Turner Finley Brief”2 and a Petition to Withdraw.        Upon review, we
____________________________________________


1 The counseled Notice of Appeal, filed by Jeffrey A. Yelen, Esq., states that
the appeal is “based on the order entered on 7th day of June, 2018, reinstating
his appellate rights.” The appeal is, therefore, from the Judgment of Sentence
entered July 29, 2016. We have changed the caption accordingly.

2 An attorney believing that a direct appeal is frivolous should file a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). When counsel
believes an appeal of a PCRA court’s determination is without merit, the filing
is a letter comporting with Commonwealth v. Turner, 544 A.2d 927 (Pa.
Super. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
Due to our disposition, we need not review the details of counsel’s “No
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quash this Appeal pursuant to Commonwealth v. Walker, 185 A.3d 969 (Pa.

2018), and deny counsel’s Motion to Withdraw as moot.

       On January 11, 2016, Appellant entered guilty pleas at two different

docket numbers: number 936-2015 (Possession of Firearm Prohibited); and

number 942-2015 (Robbery-Threat of Serious Bodily Injury). The court

ordered a Pre-Sentence Investigation and scheduled sentencing but ultimately

continued the sentencing hearing. On July 29, 2016, Appellant pled guilty at

docket number 1643-2016 (Robbery-Threat of Serious Bodily Injury). On July

29, 2016, the trial court sentenced Appellant for all three convictions to an

aggregate term of 8-20 years’ incarceration.3 Appellant did not file a post-

sentence motion or a direct appeal.

       On July 11, 2017, Appellant filed a pro se PCRA Petition seeking only

the reinstatement of his right to file a direct appeal based on an allegation

that his counsel abandoned him. The court appointed Jeffrey Yelen, Esq., as

PCRA counsel on March 29, 2018. On June 7, 2018, the PCRA court held a

hearing on Appellant’s Petition, at which the parties agreed to the



____________________________________________


merit/Turner Finley Letter Brief” to determine whether the Brief submitted
here complies with the mandates set forth in Anders and Santiago.

3  On docket no. 942 (robbery), the court imposed a term of 4 to 10 years’
incarceration; on docket no. 1643 (robbery), the court imposed a consecutive
term of 4 to 10 years’ incarceration; and on docket no. 936 (possession of a
firearm), the court imposed a concurrent term of 3 to 6 years’ incarceration.




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reinstatement of Appellant’s direct appellate rights.4 The court entered an

Order to that effect that same day.

       On June 19, 2018, Appellant filed a counseled Notice of Appeal listing

all three docket numbers.5          Attorney Yelen filed, simultaneously with the

Notice of Appeal,6 a Motion for the Appointment of New Counsel. The court

thereafter appointed Matthew Kelly, Esq., to represent Appellant in this

appeal. Attorney Kelly filed an ordered Pa.R.A.P. 1925(b) Statement raising

one issue: whether trial counsel was ineffective for failing to object to an error

in the PSI report, asserting that his offense gravity score (“OGS”) should have

been notated as 7 rather than 10.7


____________________________________________


4At the PCRA hearing, Attorney Yelen noted that appellant “had indicated to
me there may be other PCRA issues but I indicated to him that if a direct
appeal was reinstated those are moot pending the resolution of the direct
appeal.” N.T. PCRA Hearing, 6/7/18, at 2.

5 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 936-2015.

6 Erroneously, Attorney Yelen stated in the Motion for the Appointment of New
Counsel that Appellant’s PCRA Petition had been denied. In fact, the relief
sought in the PCRA Petition was granted so that Appellant’s direct appeal
rights were reinstated nunc pro tunc.

7  The ineffectiveness issue Attorney Kelly raised in the Rule 1925(b)
Statement was never raised before the PCRA Court. Appellant Kelly apparently
failed to recognize that the appeal upon which his representation was based
was a direct appeal from Appellant’s Judgment of Sentence after the
reinstatement of Appellant’s direct appeal rights nunc pro tunc.




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       The trial court responded pursuant to Pa.R.A.P. 1925(a), correctly

stating that it was unable to address Appellant’s ineffectiveness claim on direct

appeal. See Order and Opinion, dated Nov. 7, 2018, at 3 (citing

Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002)). However, the

court also concluded that Appellant’s claim was without merit because the

record showed that Appellant was properly sentenced using an OGS of 10.

See Order and Opinion at 3 n.4 (detailing applicable sentencing guidelines

with citation to 204 Pa.Code § 303.15).

       Appellate counsel filed a “No Merit/Turner Finley Brief”8 in which he

indicated, without reference to the actual PCRA Petition that was filed, that

the order in question is “the PCRA court’s denial of Appellant’s [PCRA] Relief.”

See “Turner Finley Brief” at 1.9

       In Commonwealth v. Walker, 185 A.3d 969 (Pa. filed June 1, 2018),

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. See id. at 971 (“We also hold, however, that prospectively,

where a single order resolves issues arising on more than one docket, separate

notices of appeal must be filed for each case.”); id. at 977 (“While we do not
____________________________________________


8 Commonwealth v. Turner, 544 A.2d 927 (Pa. Super.                       1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).

9 Attorney Kelly states in his “brief” that there was no evidence presented at
the PCRA hearing regarding the ineffectiveness claim raised in the Rule
1925(b) Statement, and he is, thus, “unable to formulate an argument and
opines that this issue has no merit and requests permission to withdraw as
counsel.” See “Turner Finley Brief” at 6.

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quash the present appeal in this instance, in future cases [Pa.R.A.P.] 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.”) (footnote omitted) (emphasis added).

     Because Appellant filed his appeal after the Supreme Court decided

Walker, this Court issued an order on July 31, 2018, 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 three docket numbers included in the sentencing order. The Court

discharged the show-cause order on August 10, 2018.

     It is undisputed that, in addition to other numerous errors, Appellant

filed a single Notice of Appeal from a Judgment of Sentence filed at three

docket numbers. Because Appellant filed his Notice of Appeal after our

Supreme Court’s decision in Walker we must quash this appeal.            See

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

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

     Appeal quashed. Petition to Withdraw denied as moot.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/2019




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