J-S32013-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                 v.                            :
                                               :
                                               :
    JOSE ANTONIO CRUZ                          :
                                               :
                       Appellant               :   No. 3008 EDA 2019

               Appeal from the Order Entered September 18, 2019
       In the Court of Common Pleas of Lehigh County Criminal Division at
                        No(s): CP-39-CR-0003697-2011,
                            CP-39-CR-0003701-2011


BEFORE:        KUNSELMAN, J., KING, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                                 FILED JULY 24, 2020

        Appellant, Jose Antonio Cruz, pro se, appeals from the order denying his

petition to vacate, alter, or amend restitution. We quash this appeal.

        The restitution award at issue was ordered contemporaneously with --

        the judgment of sentence of life imprisonment, and a consecutive
        term of 27 to 54 years’ incarceration, imposed following his jury
        conviction of first-degree murder, aggravated assault, robbery
        (five counts), and firearms not to be carried without a license (two
        counts).2
           2See 18 Pa.C.S. §§ 2502(a), 2702, 3701(a)(1)(i) and (ii),
           and 6106, respectively.

Commonwealth v. Cruz, No. 2543 EDA 2016, unpublished memorandum at

1 (Pa. Super. filed May 15, 2018). This Court affirmed Appellant’s judgment

of sentence on direct appeal. Commonwealth v. Cruz, 107 A.3d 232 (Pa.

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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Super. 2014) (unpublished memorandum).            Appellant subsequently filed a

petition under the Post Conviction Relief Act (“PCRA”)1 that the PCRA court

dismissed. On appeal, this Court

       reverse[d] the PCRA court’s order denying relief as to
       [Appellant]’s     claim    regarding     direct     appeal   counsel’s
       ineffectiveness for failing to file a petition for allowance of appeal
       in the Supreme Court. Moreover, [this Court] direct[ed] the PCRA
       court to appoint new counsel for [Appellant] and conduct an
       evidentiary hearing limited to that issue. In all other respects,
       [this Court] affirm[ed] the order denying PCRA relief.

Cruz, No. 2543 EDA 2016 at 21 (footnote omitted).

       On January 7, 2019, the trial court granted leave for Appellant to file a

petition for allowance of appeal nunc pro tunc with the Supreme Court of

Pennsylvania. On February 5, 2019, Appellant filed a petition for allowance of

appeal, which the Supreme Court denied on July 23, 2019.

       On September 11, 2019, Appellant pro se filed a “Petition To Vacate,

Alter Or Amend Restitution” (hereinafter, “Petition”), challenging the propriety

of the restitution award.2       On September 18, 2019, the trial court denied
____________________________________________


1   42 Pa.C.S. §§ 9541–9546.
2 Normally, “any collateral petition raising issues with respect to remedies
offered under the [Post Conviction Relief Act (‘PCRA’), 42 Pa.C.S. §§ 9541–
9546] will be considered a PCRA petition.” Commonwealth v. Price, 876
A.2d 988, 992 (Pa. Super. 2005). Challenges to the propriety of a sentence
are cognizable pursuant to the PCRA, see Commonwealth v. Taylor, 65
A.3d 462, 466 (Pa. Super. 2013) (defendant’s motion to correct his illegal
sentence was properly addressed as a PCRA petition); Commonwealth v.
Evans, 866 A.2d 442, 443-44 (Pa. Super. 2005) (citing Commonwealth v.
Hockenberry, 689 A.2d 283 (Pa. Super. 1997)) (treating motion to “modify”
sentence as a PCRA petition relating to the legality of sentence);



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____________________________________________


Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011) (citing
Commonwealth v. Guthrie, 749 A.2d 502, 503 (Pa. Super. 2000)
(appellant’s “motion to correct illegal sentence” must be treated as PCRA
petition)) (“That Jackson has attempted to frame his petition as a ‘motion to
correct illegal sentence’ does not change the applicability of the PCRA.”).

Additionally, “questions implicating the trial court’s power to impose
restitution concern the legality of the sentence.” Commonwealth v. Hall,
80 A.3d 1204, 1211 (Pa. 2013); see also Commonwealth v. Tanner, 205
A.3d 388, 398 (Pa. Super. 2019) (“an award of restitution relates to the
legality of a sentence”). Ergo, in most cases, Petition, challenging the
propriety of restitution, would be subject to the PCRA.

Furthermore, when direct appeal rights have been reinstated following the
grant of a first PCRA petition, the time period for filing a PCRA petition restarts,
and any subsequent petition would be considered a new first PCRA petition.
See Commonwealth v. Turner, 73 A.3d 1283, 1286 (Pa. Super. 2013) (time
period for filing PCRA petition restarts after order reinstating petitioner’s direct
appeal rights upon grant of first PCRA petition; “subsequent PCRA petition will
be considered a first PCRA petition for timeliness purposes”).

However, a PCRA petition can only be filed after the petitioner’s judgment of
sentence becomes final. 42 Pa.C.S. § 9545(b)(1) (PCRA petitions “shall be
filed within one year of the date the judgment becomes final” (emphasis
added)); Commonwealth v. Harris, 114 A.3d 1, 6 (Pa. Super. 2015) (“A
PCRA court lacks jurisdiction to consider a PCRA petition when a petitioner’s
judgment is not final.”). Where a petition for allowance of appeal to the
Supreme Court of Pennsylvania was filed, judgment of sentence becomes final
90 days after the Supreme Court either denied the petition or granted the
petition and rendered a decision. U.S. Sup. Ct. R. 13; see also 42 Pa.C.S.
§ 9545(b)(3) (“judgment 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.”).

In the current case, Appellant’s right to file a petition for allowance of appeal
to the Supreme Court – part of his direct appeal rights – was reinstated nunc
pro tunc. Hence, any calculation of timeliness for PCRA purposes begins with
the denial of this petition for allowance of appeal.             See 42 Pa.C.S.
§ 9545(b)(3); Turner, 73 A.3d at 1286. Appellant’s petition for allowance of
appeal was denied on July 23, 2019. Ninety days thereafter – and, therefore,



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Petition. On October 8, 2019, Appellant filed one notice of appeal listing two

distinct Court of Common Pleas docket numbers.

       The Official Note to Rule 341 of the Pennsylvania Rules of
       Appellate Procedure provides in relevant part:

          Where . . . 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.

       Until recently, it was common practice for courts of this
       Commonwealth to allow appeals to proceed, even if they failed to
       comply with Pa.R.A.P. 341.

          While our Supreme Court recognized that the practice of
          appealing multiple orders in a single appeal is discouraged
          under Pa.R.A.P. 512 (joint appeals), it previously
____________________________________________


the date that Appellant’s judgment of sentence became final – was
October 21, 2019.   U.S. Sup. Ct. R. 13.   Appellant filed Petition on
September 11, 2019, prior to his judgment of sentence becoming final.
Petition thereby cannot be considered a PCRA petition, as Appellant’s
judgment of sentence was not final when it was filed.      42 Pa.C.S.
§ 9545(b)(1); Harris, 114 A.3d 1.

Appellant thus is not entitled to the protections of the PCRA, including not
being eligible for the appointment of counsel, as would be required for a first
PCRA petition. Commonwealth v. Kelsey, 206 A.3d 1135, 1139 (Pa. Super.
2019) (“A convicted defendant has a right under the Rules of Criminal
Procedure to the assistance of counsel on a first PCRA petition.”). Had
Appellant been entitled to counsel, we would have remanded for appointment
of counsel, irrespective of the violation of Commonwealth v. Walker, 185
A.3d 969 (Pa. 2018), discussed below, because we would presume that
counsel would have filed separate notices of appeal for each docket number,
as “counsel is presumed to be competent[.]” Commonwealth v. King, 57
A.3d 607, 614 (Pa. 2012); see also Commonwealth v. Velazquez, 216
A.3d 1146, 1149 (Pa. Super. 2019) (“[w]e presume counsel is effective”).

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        determined that “appellate courts have not generally
        quashed [such] appeals, provided that the issues involved
        are nearly identical, no objection to the appeal has been
        raised, and the period for appeal has expired.” K.H. v. J.R.,
        826 A.2d 863, 870 (Pa. 2003) (citation omitted).

     In the Interest of: P.S., 158 A.3d 643, 648 (Pa. Super. 2017)
     (footnote omitted).

     However, on June 1, 2018, our Supreme Court in
     [Commonwealth v.] Walker[, 185 A.3d 969 (Pa. 2018),] held
     that the practice violated Pennsylvania Rule of Appellate
     Procedure 341, and the failure to file separate notices of appeal
     for separate dockets must result in quashal of the appeal. See
     Walker, 185 A.3d at 977. The Court stated unequivocally: “The
     Official Note to Rule 341 provides a bright-line mandatory
     instruction to practitioners to file separate notices of appeal. . . .
     The failure to do so requires the appellate court to quash the
     appeal.” Id. at 976-77.

     Because the mandate in the Official Note was contrary to “decades
     of case law from this Court and the intermediate appellate courts,”
     the Walker Court announced that its holding would apply
     prospectively only. Id. at 977. Accordingly, Walker applies to
     appeals filed after June 1, 2018, the date Walker was filed. Id.

                                  *    *    *
        2 We recognize the harsh - perhaps draconian - consequence
        of quashing any appeal . . . However, our role as an
        intermediate appellate court is clear.        “It is not the
        prerogative of an intermediate appellate court to enunciate
        new precepts of law or to expand existing legal doctrines.
        Such is a province reserved to the Supreme Court.” Moses
        v. T.N.T. Red Star Exp., 725 A.2d 792, 801 (Pa. Super.
        1999). It is well-settled that “the Superior Court is an error
        correcting court and we are obliged to apply the decisional
        law as determined by the Supreme Court of Pennsylvania.”
        Commonwealth v. Montini, 712 A.2d 761, 769 (Pa.
        Super. 1998).

In re M.P., 204 A.3d 976, 980-81 & n.2 (Pa. Super. 2019). In M.P., id. at

980, this Court “remind[ed], advise[d] and emphasize[d] to all litigants who

seek appellate review with this Court – whether in criminal, civil or family


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cases – that Walker is the law of the Commonwealth, and shall be applied

prospectively and uniformly by this Court.”

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

two separate docket numbers.      Appellant’s notice of appeal postdates the

Walker decision.    Consequently, Walker compels quashal of the current

appeal.

     Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/24/20




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