J-S46041-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES ROBERT R. ALSTON                     :
                                               :
                       Appellant               :   No. 2387 EDA 2018

               Appeal from the PCRA Order Entered July 19, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
           No(s): CP-51-CR-0006870-2012, CP-51-CR-0004370-2013


BEFORE:      PANELLA, P.J., OLSON, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                             FILED OCTOBER 04, 2019

        Appellant, James Robert R. Alston, pro se, appeals from the order

entered July 19, 2018, that dismissed his petition filed under the Post

Conviction Relief Act (“PCRA”)1 without a hearing.         The order listed two

separate docket numbers: CP-51-CR-0006870-2012 (“No. 6870-12”) and CP-

51-CR-0004370-2013 (“No. 4370-13”). At No. 6870-12, we vacate the order

and remand to the PCRA court for the appointment of counsel to represent

Appellant or for a Grazier2 hearing. At No. 4370-13, we quash the appeal.



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   42 Pa.C.S. §§ 9541–9546.
2   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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        The relevant procedural history of these cases is as follows. On April 6,

2015, at No. 6870-12, Appellant pleaded guilty to possession of firearm

prohibited3 and was sentenced to three to six years of confinement.         That

same day, at No. 4370-13, Appellant pleaded guilty to murder of the third

degree, conspiracy to commit murder of the third degree, and possession of

firearm prohibited4 and was sentenced to an aggregate judgment of sentence

of 27½ to 60 years of confinement, to be served concurrently with his

sentence at No. 4370-13.

        On August 28, 2015, Appellant pro se filed a PCRA petition, listing No.

4370-13 only. His memorandum in support of this PCRA petition only lists No.

4370-13, as well. This PCRA petition was unsuccessful.

        On June 7, 2018, Appellant filed the current pro se PCRA petition and a

motion to proceed pro se; both the PCRA petition and the motion to proceed

pro se listed both docket numbers. On June 18, 2018, the PCRA court entered

a notice at both docket numbers of intent to dismiss all claims without a

hearing pursuant to Pa.R.Crim.P. 907 (“Rule 907 Notice”); the PCRA court had

not appointed counsel, held a Grazier hearing, nor ruled on Appellant’s

motion to proceed pro se. On June 28, 2018, Appellant filed a pro se response

to the Rule 907 Notice at both docket numbers.


____________________________________________


3   18 Pa.C.S. § 6105(a)(1).
4   Id. §§ 2502(c), 903, and 6105(a)(1), respectively.


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      On July 19, 2018, the PCRA court entered an order granting the “Motion

to Dismiss PCRA Petition” listing only No. 6870-12 and a separate order

granting the “Motion to Dismiss PCRA Petition” listing only No. 4370-13.

However, the Commonwealth never filed a motion to dismiss PCRA petition at

either docket number. Later that same day, the PCRA court entered another

order denying the PCRA petition, which listed both docket numbers.           On

August 1, 2018, Appellant timely filed a pro se notice of appeal listing both

docket numbers.

                                No. 6870-12

      Appellant’s PCRA petition filed June 7, 2018, was Appellant’s first PCRA

petition at No. 6870-12. The PCRA court did not appoint counsel to represent

Appellant at No. 6870-12 nor hold a Grazier hearing. “[A] criminal defendant

has a right to representation of counsel for purposes of litigating a first PCRA

petition through the entire appellate process.”           Commonwealth v.

Robinson, 970 A.2d 455, 457 (Pa. Super. 2009) (en banc). The PCRA court

thus erred by not appointing PCRA counsel for Appellant’s first PCRA petition

at No. 6870-12 nor holding a Grazier hearing. Accordingly, for No. 6870-12

only, we vacate the order of July 19, 2018, and remand to the PCRA court;

upon remand, the PCRA court must appoint counsel to represent Appellant or

hold a Grazier hearing.




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                                No. 4370-13

      On June 1, 2018, in Commonwealth v. Walker, 185 A.3d 969 (Pa.

2018), the Supreme Court of Pennsylvania held that the common practice of

filing a single notice of appeal from an order involving more than one docket

would no longer be tolerated, because the practice violates Pa.R.A.P. 341,

which requires the filing of “separate appeals from an order that resolves

issues arising on more than one docket.” Walker, 185 A.3d at 977. The

failure to file separate appeals under these circumstances “requires the

appellate court to quash the appeal.” Id.

      Instantly, Appellant filed a single notice of appeal from the order that

denied PCRA relief at two separate docket numbers.       Appellant’s notice of

appeal was filed on August 1, 2018, which postdates the Walker decision.

      Walker is not controlling for our decision at No. 6870-12, because, the

PCRA court’s failure to appoint counsel in No. 6870-12 constitutes a

breakdown in the operations of the court, which permits us to overlook the

errors in Appellant’s pro se notice of appeal, including his lack of compliance

with Walker and its progeny. See Commonwealth v. Flowers, 149 A.3d

867, 872 (Pa. Super. 2016) (breakdown in court operation granted this Court

jurisdiction over untimely appeal where trial court failed to correct counsel’s

misstatement about deadline for filing appeal and incorrectly provided that

the appellant had an additional thirty days to appeal from order denying

motion for    reconsideration of   sentence   imposed    upon revocation of


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intermediate punishment); Commonwealth v. Patterson, 940 A.2d 493,

498 (Pa. Super. 2007) (recognizing this Court’s power to grant relief in the

case of a fraud or breakdown in the processes of the court); Commonwealth

v. Perry, 820 A.2d 734 (Pa. Super. 2003) (holding clerk of court’s failure to

follow the criminal rules constitutes a breakdown in the court process). Had

counsel been appointed at No. 6870-12, we presume that counsel would have

filed a separate notice of appeal for No. 6870-12, because “counsel is

presumed to be competent[.]” Commonwealth v. King, 57 A.3d 607, 614

(Pa. 2012); see also Commonwealth v. Daniels, 963 A.2d 409, 427 (Pa.

2009) (“counsel is presumed to be effective”). However, under Walker, we

must quash Appellant’s appeal at No. 4370-13, because Appellant was not

eligible for appointed counsel for his second PCRA petition at that docket

number and thus is not entitled to the presumption at No. 4370-13 that

counsel would have filed a separate notice of appeal for that docket number.

     Order vacated and case remanded with instructions at No. 6870-12.

Appeal quashed at No. 4370-13. Jurisdiction relinquished.




     President Judge Panella joins the memorandum.

     Judge Olson Concurs in the Result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/4/19




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