J-S41038-19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                  Appellee                 :
                                           :
                      v.                   :
                                           :
PATRICK L. COOK,                           :
                                           :
                  Appellant                :    No. 427 MDA 2019

           Appeal from the PCRA Order Entered February 21, 2019
               in the Court of Common Pleas of Mifflin County
            Criminal Division at No(s): CP-44-CR-0000517-2012

COMMONWEALTH OF PENNSYLVANIA,              :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                  Appellee                 :
                                           :
                      v.                   :
                                           :
PATRICK L. COOK,                           :
                                           :
                  Appellant                :    No. 428 MDA 2019

           Appeal from the PCRA Order Entered February 21, 2019
               in the Court of Common Pleas of Mifflin County
            Criminal Division at No(s): CP-44-CR-0000087-2013

BEFORE:     LAZARUS, J., MURRAY, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                       FILED JULY 29, 2020

      Patrick L. Cook (Appellant) pro se   appeals   from   the   February   21,

2019 order dismissing his petition filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we affirm.

      A prior panel of this Court summarized the factual and procedural

history as follows.


*Retired Senior Judge assigned to the Superior Court.
J-S41038-19


            On November 13, 2013, following a jury trial at which
     Appellant proceeded pro se, but with the assistance of standby
     counsel, Appellant was convicted of aggravated indecent assault,
     indecent assault, and corruption of minors. The offenses were
     perpetrated between November 2004 and September 2007, and
     involved two females who were less than thirteen years of age.
     Another offense occurred in July 2010, and involved one of the
     earlier victims.

           Appellant appeared pro se at sentencing, but again had the
     benefit of standby counsel.        The trial court imposed an
     aggregate sentence of eleven to twenty-two years [of]
     imprisonment based on the application of two five[-]to-[-]ten
     year mandatory minimum sentences for aggravated indecent
     assault on a child less than thirteen years old. Appellant, who
     had been determined to be a sexually violent predator, was also
     advised of the lifetime reporting requirements and what that
     entailed.

            Following pronouncement of sentence, the court advised
     Appellant of his post-sentence and appeal rights. Specifically,
     Appellant was told that he had the right to file a written post-
     sentence motion within ten days stating the particular relief
     sought. The court also advised Appellant that he had “the same
     right to assigned counsel as has existed through sentencing.” If
     he chose not to file a post-sentence motion, the court explained
     that he had the option to appeal to the Superior Court within
     thirty days.        Appellant was provided with a written
     acknowledgement of post-sentence procedures.            Appellant
     informed the trial court on the record that he wanted a transcript
     of the proceedings and he was advised to put that in writing
     either in his post-sentence motion or in his appeal.

           Appellant did not file a [post-sentence motion or] direct
     appeal from [the] judgment of sentence. Rather, on February
     23, 2015, he filed a timely pro se PCRA petition. The court
     appointed counsel to represent him, and counsel filed an
     amended petition on May 7, 2015 on Appellant’s behalf.
     Appellant asserted that the court’s failure to conduct a waiver-
     of-counsel colloquy pursuant to Pa.R.Crim.P. 121 and its denial
     of his request to permit standby counsel to assume
     representation during the trial resulted in the violation of his
     federal and state constitutional right[s] to counsel and so


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     undermined the truth[-]determining process that no reliable
     adjudication of guilt or innocence could have taken place.
     Finally, Appellant maintained that although his waiver of right to
     counsel was voluntary, it was neither knowing nor intelligent,
     and that his performance at trial was so ineffective as to deprive
     him of a defense.

           The court scheduled a hearing on the amended petition.
     By order dated July 31, 2015, Matthew M. McClenahen, Esquire,
     was granted leave to withdraw as counsel2 and on August 6,
     2015, attorney Steven P. Trialonas was appointed as counsel.
     Counsel filed a second amended PCRA petition on October 27,
     2015, in which he averred that prior counsel had presented the
     only issues of merit.      Following an evidentiary hearing on
     December 11, 2015, and the submission of briefs, the PCRA
     court denied relief on February 4, 2016.
           ______
           2 The trial court represents that Attorney McClenahen

           sought withdrawal due to threats made by Appellant.

Commonwealth v. Cook, 159 A.3d 58 (Pa. Super. 2016) (unpublished

memorandum at 1-4) (footnote and citations omitted).

     Upon appeal from denial of his PCRA petition, this Court denied
     Appellant relief on his counsel-related issues, both because
     Appellant waived the claims by failing to pursue them in a direct
     appeal, and because it found no merit to them in any
     event. However, [in light of Alleyne v. United States, 570 U.S.
     99 (2013),1] this Court sua sponte vacated his judgment of
     sentence, which included two unconstitutional mandatory
     minimum sentences, and remanded for resentencing.

     Pursuant to this Court’s directive, the trial court resentenced
     Appellant on February 2, 2017, without consideration of the
     mandatory minimum statutes, and imposed an aggregate


1 In Alleyne, the United States Supreme Court held that any fact that
increases the mandatory minimum sentence for a crime is an element of
that crime, and therefore must be submitted to the trier of fact and proven
beyond a reasonable doubt.



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      sentence of ten to 20 years of imprisonment. Appellant did not
      file a post-sentence motion.

Commonwealth v. Cook, 175 A.3d 345, 347 (Pa. Super. 2017) (citations

omitted).    On appeal, this Court affirmed Appellant’s new judgment of

sentence and granted counsel’s petition to withdraw. Id. at 351. Appellant

did not file a petition for allowance of appeal with our Supreme Court.

      On January 28, 2019, Appellant pro se filed the instant PCRA petition.

Appellant asserted his petition was timely filed pursuant to 42 Pa.C.S.

§ 9545(b)(1)(ii).2 PCRA Petition, 1/28/2019, at 7. Appellant did not state

upon what newly-discovered fact he was relying, nor otherwise elaborate on

how this exception had been satisfied. On January 30, 2019, the PCRA court

issued notice of its intent to dismiss Appellant’s PCRA petition without a

hearing, pursuant to Pa.R.Crim.P. 907, because it was untimely filed. 3 The

PCRA Court dismissed Appellant’s PCRA petition on February 21, 2019.

      This appeal followed.4 On March 11, 2019, Appellant pro se filed two

identical notices of appeal, each listing both docket numbers. The notices of




2This subsection provides that “the facts upon which the claim is predicated
were unknown to the petitioner and could not have been ascertained by the
exercise of due diligence[.]” 42 Pa.C.S. § 9545(b)(1)(ii).
3Appellant filed a response after the PCRA petition was dismissed.        See
Objection to Intent to Dismiss, 2/25/2019.
4 Both Appellant and the PCRA court complied with Pa.R.A.P. 1925. In lieu
of an opinion, the PCRA court referred this Court to its January 30, 2019
(Footnote Continued Next Page)


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appeal were docketed in this Court separately and subsequently consolidated

by this Court sua sponte. On March 27, 2019, this Court sua sponte ordered

the PCRA court to determine whether Appellant wished to proceed pro se on

appeal. Following a hearing on April 16, 2019, the PCRA court found that

Appellant knowingly, intelligently, and voluntarily waived his right to counsel

and desired to proceed pro se. On April 30, 2019, this Court issued an order

directing Appellant to show cause why his appeal should not be quashed

pursuant to Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018).5

Appellant did not file a response. On May 21, 2019, this Court discharged

the rule to show cause and referred the issue to the merits panel for

disposition.   Thus, we must first address whether Appellant has complied

with the dictates of Walker.

      The Official Note to Rule 341, as amended in 2013, provides as

follows.

      Where ... one or more orders resolves [sic] issues arising on
      more than one docket or relating to more than one judgment,
      separate notices of appeal 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
(Footnote Continued)   _______________________



opinion, as well as Commonwealth v. Cook, 159 A.3d 58 (unpublished
memorandum). Order, 4/16/2019.
5 In Walker, our Supreme Court held that notices of appeal filed after June
1, 2018 must be quashed if the appellant fails to file separate notices of
appeal from a single order resolving issues arising on more than one lower
court docket. 185 A.3d at 977.



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      consideration under Pa.R.Crim.P. 607 of two persons’ judgments
      of sentence).

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

            In Walker, our Supreme Court construed the above-
      language as constituting “a bright-line mandatory instruction to
      practitioners to file separate notices of appeal.” Walker, 185
      A.3d at 976-77. Therefore, the Walker Court held that “the
      proper practice under Rule 341(a) is to file separate appeals
      from an order that resolves issues arising on more than one
      docket. The failure to do so requires the appellate court to quash
      the appeal.” Id. at 977.

Commonwealth v. Williams, 206 A.3d 573, 575 (Pa. Super. 2019).

However, because intermediate appellate courts had seldom quashed

appeals as a result of violating the Note to Rule 341, the Walker Court held

that its ruling would only apply prospectively to notices of appeal filed after

June 1, 2018. Thus,

      the Walker Court directed that “in future cases Rule 341 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]
      (emphasis added).

Williams, 206 A.3d at 575-76.

      Appellant’s notices of appeal were filed after June 1, 2018, and

therefore must comply with Rule 341 and Walker. Here, Appellant filed two

notices of appeal from two lower court docket numbers, listing both docket

numbers on each notice of appeal.      The notice of appeal docketed at 427

MDA 2019 is a photocopy of Appellant’s original notice of appeal, which was



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docketed at 428 MDA 2019. Although one notice of appeal is a photocopy of

the other, the two notices of appeal bear independent, original time stamps.

     While Appellant’s two consolidated appeals were pending, an en banc

panel of this Court concluded that Walker does not require that a notice of

appeal contain only one docket number.

     Importantly, we observe that Rule 341 and Walker make no
     mention of case numbers on a notice of appeal. To be sure, the
     error in Walker was the filing of a single notice of appeal
     affecting multiple cases and several defendants. The bright-line
     rule set forth in Walker only required an appellant to file
     a “separate” notice of appeal for each lower court docket the
     appellant was challenging.

     Here, it is indisputable that Johnson filed a separate notice of
     appeal for each of the four dockets below, because he italicized
     only one case number on each notice of appeal.
     Unlike [Commonwealth v. Creese, 216 A.3d 1142 (Pa. Super.
     2019)], the clerk of courts played no role in typing four separate
     notices of appeal and italicizing the individual docket numbers on
     Johnson’s behalf. Based on our review of Walker and Rule 341,
     Johnson filed separate notices that perfected four appeals from
     each of the four common pleas court dockets. The fact that the
     notices contained all four lower court numbers is of no
     consequence. Indeed, the Rules of Appellate Procedure are to be
     liberally construed to effectuate justice. Pa.R.A.P. 105(a); see
     also 1 Pa.C.S.[] § 1928(c). We should not invalidate an
     otherwise timely appeal based on the inclusion of multiple docket
     numbers, a practice that the Rules themselves do not expressly
     forbid.

     By stating that each notice of appeal may contain only one
     number, Creese imposed      upon   appellants   an    additional
     requirement found in neither Walker nor Rule 341. Although our
     Supreme Court may adopt such a rule in the future, it did not do
     so in Walker. As such, in so far as Creese stated “a notice of
     appeal may contain only one docket number,” 216 A.3d at 1144
     (emphasis added), that pronouncement is overruled. Because
     Johnson appealed from four docket numbers and filed four


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      notices of appeal, Johson has complied with Walker. The fact
      that each notice of appeal listed all four docket numbers does
      not invalidate his notices of appeal, and we decline to quash his
      appeals.

Commonwealth v. Johnson, ___ A.3d ___, 2020 Pa. Super. 164 at *11-

12 (Pa. Super. 2020) (footnotes omitted).

      Like Johnson, Appellant filed separate notices of appeal for each

docket number. The facts that Appellant included both docket numbers on

each notice of appeal and the underlying notices were photocopies of each

other are of no consequence.         Appellant filed the notices of appeal

independently, as evidenced by the distinct time stamps.       Thus, Appellant

has complied with Rule 341 and Walker by filing a notice of appeal for each

docket number, and quashal is not required here. See Johnson, supra.

      We may now review Appellant’s consolidated appeal.             Appellant

presents two claims for this Court’s consideration.

      1. Did the original [PCRA] court err in denying the [PCRA]
         petition without a hearing by misapprehending the
         retrospective application in Commonwealth v. Hopkins,
         117 A.3d 247 ([Pa.] 2015)[,] when it’s [sic] paradigm,
         Alleyne[,] created a “substantive rule,” which “the
         Constitution requires state collateral review courts to give
         retroactive effect to that rule?”

      2. Do standby counsel’s inappropriate actions constitute per se
         ineffectiveness, pursuant to U.S. v. Cronic, 466 U.S. 648
         (1984)[, ] when [Appellant] requested that counsel file a
         reconsideration of sentence, counsel assured said action
         would be completed, yet said reconsideration was never filed?

Appellant’s Brief at 4 (unnecessary capitalization omitted).



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      Before reaching the merits of Appellant’s claims, we must determine

whether Appellant has timely filed his petition, as neither this Court nor the

PCRA court has jurisdiction to address the merits of an untimely-filed

petition.   Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa. Super.

2011).

      Any PCRA petition, including second and subsequent petitions, must

either (1) be filed within one year of the judgment of sentence becoming

final, or (2) plead and prove a timeliness exception. 42 Pa.C.S. § 9545(b).

Furthermore, the petition “shall be filed within one year of the date the claim

could have been presented.” 42 Pa.C.S. § 9545(b)(2).

      “For purposes of [the PCRA], a judgment [of sentence] becomes final

at the conclusion of direct review, including discretionary review in the

Supreme Court of the United States and the Supreme Court of Pennsylvania,

or at the expiration of time for seeking the review.”              42 Pa.C.S.

§ 9545(b)(3). Pertinent to this appeal,

      a successful first PCRA petition does not “reset the clock” for the
      calculation of the finality of the judgment of sentence for
      purposes of the PCRA where the relief granted in the first
      petition neither restored a petitioner’s direct appeal rights nor
      disturbed his conviction, but, rather, affected his sentence only.

Commonwealth v. McKeever, 947 A.2d 782, 785 (Pa. Super. 2008)

(citation omitted).

      Here, Appellant was sentenced originally on February 28, 2014.

Appellant did not file a post-sentence motion or notice of appeal. Therefore,


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his judgment of sentence became final on March 31, 2014, following the

expiration of time for filing a notice of appeal.6 Appellant timely filed a PCRA

petition, which the PCRA court dismissed.       On appeal, this Court denied

Appellant’s counsel-based claims, but sua sponte vacated his sentence and

remanded for resentencing pursuant to Alleyne.

       Thus, following Appellant’s first PCRA petition, his direct appeal rights

were not reinstated, nor were his convictions disturbed. Rather, the relief he

received from this Court on appeal from the dismissal of his PCRA conviction

affected his sentence only. Therefore, his new judgment of sentence did not

reset the clock “for the calculation of the finality of the judgment of sentence

for purposes of the PCRA.”        McKeever, 947 A.2d at 785.          As such,

Appellant’s January 28, 2019 petition constituted a serial petition, and

Appellant had until March 31, 2015, to file timely a PCRA petition.

Appellant’s January 28, 2019 PCRA petition was patently untimely, and

Appellant was required to plead and prove an exception to the PCRA’s time-

bar.

       In his petition, Appellant attempted to invoke the newly-discovered

facts exception to the PCRA’s time-bar.       To qualify for this exception, “a

petitioner need only establish that the facts upon which the claim is based


6See 1 Pa.C.S. § 1908 (“Whenever the last day of any such period shall fall
on Saturday or Sunday, … such day shall be omitted from the
computation.”).



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were unknown to him and could not have been ascertained by the exercise

of due diligence.”   Commonwealth v. Burton, 158 A.3d 618, 629 (Pa.

2017) (some citations omitted). “Due diligence demands that the petitioner

take reasonable steps to protect his own interests. A petitioner must explain

why he could not have obtained the new fact(s) earlier with the exercise of

due diligence.” Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.

Super. 2010) (citations omitted).

      Appellant did not state in his petition what newly-discovered fact he

was referencing, or when he learned of the alleged newly-discovered fact.

Accordingly, Appellant has failed to establish this exception. Based on the

foregoing, we conclude that Appellant’s PCRA petition was filed untimely,

and he has not asserted a valid exception to the timeliness requirements.

Thus, he is not entitled to relief.   See Commonwealth v. Albrecht, 994

A.2d 1091, 1095 (Pa. 2010) (affirming dismissal of PCRA petition without a

hearing because the appellant failed to meet burden of establishing

timeliness exception).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 07/29/2020


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