J-S03018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 IAN XAVIER MAUTE                         :
                                          :
                    Appellant             :   No. 1653 EDA 2018

                  Appeal from the PCRA Order May 9, 2018
  In the Court of Common Pleas of Pike County Criminal Division at No(s):
                         CP-52-CR-0000032-2013,
            CP-52-CR-0000508-2012, CP-52-CR-0000518-2012


BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.:                               FILED MAY 10, 2019

      Appellant, Ian Xavier Maute, appeals from an order entered on May 9,

2018 that denied his petition filed pursuant to the Post-Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We quash.

      The PCRA court summarized the factual background of this case as

follows.

      [Appellant] in this matter was convicted of two (2) counts of
      robbery, two (2) counts of possession of instruments of a crime,
      criminal solicitation, reckless endangerment of another person,
      and related crimes, following a jury trial. Appellant was sentenced
      to not less than ten and one-half [10½] years nor more than
      twenty-five (25) years of incarceration in a state correctional
      facility. On January 22, 2014, Appellant’s post-sentence motion
      for arrest of judgment, new trial, and reconsideration of sentence
      was denied. On February 19, 2014, Appellant filed his first appeal
      to [this Court]. On March 5, 2014, [this Court affirmed Appellant’s
      judgment of sentence].
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     On November 18, 2016, [Appellant] filed a petition for
     post-conviction collateral relief (“petition”). On July 3, 2017,
     Appellant filed a [request] to amend [his collateral relief] petition
     and a petition for funds for an expert witness. On July 11, 2017,
     th[e PCRA court] granted [Appellant’s] petition to file an amended
     petition within twenty (20) days, but withheld action on his
     request for funds pending the filing of an amended petition. On
     August 28, 2017, th[e PCRA c]ourt issued an order directing
     Appellant to file an amended petition in accord[ance] with the
     order dated July 11, as Appellant had not yet filed same.

     On September 5, 2017, Appellant filed an amended petition
     [pursuant to the PCRA] and an evidentiary hearing was scheduled
     for March 20, 2018. Immediately following the March 20 hearing,
     the [PCRA c]ourt granted counsel for the Appellant thirty (30)
     days after submission of the hearing transcript in which to file a
     brief and the Commonwealth was afforded thirty (30) days
     thereafter to respond. On March 20, 2018, counsel for [Appellant]
     filed a motion for transcripts, which was granted by April 4, 2018.
     On May 9, 2018, th[e PCRA c]ourt entered an order denying
     [Appellant’s] PCRA [petition]. On June 5, 2018, Appellant filed
     the appeal sub judice[.]

PCRA Court Opinion, 8/22/18, at 1-2 (miscellaneous capitalization omitted).

     Appellant raises the following claims for our review.

     [Did the] PCRA court fail[] to give [Appellant] a fair and impartial
     post-conviction proceeding, as demonstrated by repeated failure
     to serve counsel of record with orders and documents, failure to
     respond to pre-hearing filings, disregard of the timeline the court
     set for brief in support of the PCRA, and rendering a verdict on the
     PCRA without consideration of arguments by counsel[?]

     [Did the] PCRA court erred when it found counsel was not
     ineffective for failing to investigate and procure an eye witness
     expert, which was a reasonable extension of the law being argued
     throughout the Commonwealth, and which was the basis for the
     defense at trial[?]

     [Did the] PCRA court err[] in failing to grant expert witness funds
     for the PCRA[?]




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        [Did the] PCRA court err[] when it found that trial counsel was not
        ineffective for his failure to object on the record to the [Brady
        v. Maryland, 373 U.S. 83 (1963)] violation at trial: the failure to
        provide defense with a copy of a key witness’s first written
        statement[?]

        [Did the] PCRA court err[] in finding that there is no merit to the
        argument that trial counsel had a valid basis for requesting recusal
        of the trial Judge, and the failure to request the recusal was
        ineffective assistance of counsel, especially when the district
        attorney’s office (including the district attorney who was at the
        PCRA hearing) [requested] recusal of that judge, for the same
        reasons averred in the PCRA, in other cases in the same period[?]

Appellant’s Brief at 8-9.1

        Before we consider the merits of Appellant's claims, we first determine

whether this appeal is properly before us. Appellant, on June 5, 2018, filed a

single notice of appeal listing three docket numbers, rather than separate

notices of appeal at each docket in accordance with Pa.R.A.P. 341. Because

of this procedural misstep, we are constrained to quash.

        In Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), our Supreme

Court recognized that the “Official Note to Rule 341 provides a bright-line

mandatory instruction [] to file separate notices of appeal.... The failure to do

so requires the appellate court to quash the appeal.” Id. at 976-977. The

Court, however, determined that the failure to file separate notices of appeal

would result in quashal only for appeals filed after the date of that decision,

i.e., June 1, 2018. The instant appeal was filed on June 5, 2018. Therefore,

the rule announced in Walker governs.


____________________________________________


1   Appellant withdrew a claim alleging that his sentence was illegal.

                                           -3-
J-S03018-19



      On July 30, 2018, this Court issued an order directing Appellant to show

cause why the appeal should not be quashed pursuant to Walker. Appellant

filed a counseled response. In his response, Appellant pointed out that he

took his appeal from a single order that dismissed collateral claims at all three

dockets, that the Walker case was not yet final when the appeal was

docketed, and that all three cases proceeded along identical procedural lines

both before the trial court and on direct appeal. See Appellant’s Response to

Rule to Show Cause, 7/31/18, at 2-3.         Specifically, Appellant’s response

stated:

      [Appellant’s] appeal of his PCRA should, in the first instance, be
      seen as separately docketed, as the notices of appeal all exist and
      the notices of appeal are all paid for. Further, the appeal should
      not be quashed because [Appellant’s case] is not representative
      of the type of cases which would require a separate notice of
      appeal, as all procedural aspects of his case have gone together
      and been dealt with in a single hearing/order including trial, direct
      appeal and PCRA. Finally, the case should not be quashed
      because at the time of the Walker decision it was counter to the
      rules as commonly understood by practitioners and the case law
      in the Commonwealth. Finally, at the time of the appeal being
      docketed Walker was not yet final and, arguably, the Walker
      Court believes the rule change should come with clarification of
      the Rule or Official Notice, and not even from the case itself.

Appellant’s Response to Rule to Show Cause, 7/31/18, at 3-4.           By order

entered September 26, 2018, this Court discharged its rule to show case and

referred the matter to this merits panel.

      We are unable to agree with Appellant’s proffered grounds to forgo

quashal.   Neither payment of appellate fees nor consolidated treatment of

separately docketed cases constitute reasons to distinguish Walker. Walker

                                      -4-
J-S03018-19


mandates that, after June 1, 2018, failure to file separate notices in

accordance with the Official Note to Rule 341(a) “will result in quashal of the

appeal.” Walker, 185 A.3d at 977. The Supreme Court did not carve out any

exceptions and we have no authority to do so. Moreover, the plain text of the

commentary to Rule 341 states, “Where, however, one or more orders

resolves issues arising on more than one docket or relating to more than one

judgment, separate notices of appeal must be filed.” Pa.R.A.P. 341 cmt.

Accordingly, we reject Appellant’s claim that the present circumstances do not

call for the filing of separate notices of appeal at each docket number.

Therefore, we quash.

      Appeal quashed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/10/19




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