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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TIMOTHY ALLEN COHICK, :
:
Appellant : No. 927 MDA 2018
Appeal from the Judgment of Sentence May 16, 2018
in the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0000662-2017
CP-41-CR-0001350-2017
CP-41-CR-0001929-2017
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TIMOTHY ALLEN COHICK, :
:
Appellant : No. 1497 MDA 2018
Appeal from the Judgment of Sentence Entered May 16, 2018
in the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0000662-2017
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TIMOTHY ALLEN COHICK, :
:
Appellant : No. 1506 MDA 2018
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Appeal from the Judgment of Sentence May 16, 2018
in the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0001350-2017
BEFORE: BOWES, J., MCLAUGHLIN, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 13, 2019
Timothy Allen Cohick (Appellant) appeals from the judgment of
sentence entered on May 16, 2018, following revocation of his parole,
intermediate punishment (IP), and probation at three separate docket
numbers.1 Appellant’s counsel has filed petitions to withdraw and briefs
pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we
quash these appeals and deny counsel’s petitions to withdraw as moot.
We provide the following background. On November 3, 2017,
Appellant pleaded guilty at docket number 662-2017 to fleeing or attempting
to elude a police officer, driving under the influence (DUI), possession of
controlled substance, possession of drug paraphernalia, resisting arrest,
tampering with physical evidence, and driving under suspension – DUI
1 As will be discussed infra, Appellant filed three separate notices of appeal.
Because these cases are interrelated and the same issue is involved at each
appeal, we consolidate the appeals. Pa.R.A.P. 513 (“Where there is more
than one appeal from the same order, or where the same question is
involved in two or more appeals in different cases, the appellate court may,
in its discretion, order them to be argued together in all particulars as if but
a single appeal.”)
* Retired Senior Judge assigned to the Superior Court.
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related, and at docket number 1350-2017 to two counts of theft by failure to
make required disposition of funds. On February 26, 2018, Appellant
pleaded guilty at docket number 1929-2017 to providing false identification
to law enforcement. On March 26, 2018, Appellant was sentenced at all
three docket numbers to an aggregate term of 9 to 18 months of
incarceration, followed by three and one-half years of supervision under the
IP program, followed by one and one-half years of probation.
On March 28, 2018, Appellant was accepted into DUI court, and the
conditions of his supervision were amended to include the successful
completion of DUI court. Appellant was released from incarceration on April
2, 2018, due to his credit for time served. On April 3, 2018, as part of the
DUI court program, Appellant “was placed on a Transdermal Alcohol Device
(TAD) unit” to monitor Appellant’s consumption of alcohol, which was
prohibited while participating in DUI court. Trial Court Opinion, 10/25/2018,
at 2. “On April 8, 2018, there was a reading of .104 between 12:52 a.m.
and 6:27 a.m., and there was a reading of .025 between 11:27 p.m. on April
8 and 12:42 a.m. on April 9, 2018.” Id. (footnote omitted).
On May 10, 2018, the trial court held a parole, IP, and probation
violation hearing. At the conclusion of the hearing, the court found that
Appellant had violated the conditions of his supervision by consuming alcohol
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and referred the case to DUI court for sanctions. On May 16, 2018, the DUI
court sentenced Appellant to a period of incarceration of 45 days.
On June 4, 2018, Appellant filed a single notice of appeal at all three
docket numbers (docketed at 927 MDA 2018), and attached the May 10,
2018 trial court order as the order from which he appealed. In this Court,
we issued a rule to show cause as to why the appeal should not be quashed
as interlocutory and in light of our Supreme Court’s holding in
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) (holding that failure
to file separate notices of appeal from a single order resolving issues on
more than one lower court docket will result in quashal of the appeal). Per
Curiam Order, 7/13/2018. On July 23, 2018, Appellant responded, arguing
that the appeal was not interlocutory as the notice of appeal should have
referenced the May 16, 2018 order imposing sanctions and not the trial
court’s May 10, 2018 order, and requesting leave for counsel, “who ha[d]
only recently become aware of [the requirements of Walker, to] file the
additional notices for the remaining dockets.” Appellant’s Response to Rule
to Show Cause, 7/23/2018, at 2 (unnumbered) (unnecessary capitalization
altered).
On August 9, 2018, this Court discharged the rule and granted
Appellant leave to file additional notices of appeal “without prejudice for the
merits panel to quash some or all of the appeals upon review.” Per Curiam
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Order, 8/9/2018. On August 24, 2018, Appellant filed two additional notices
of appeal (docketed at 1497 MDA 2018 for docket number 662-2017, and at
1506 MDA 2018 for docket number 1350-2017). Subsequently, this Court
dismissed Appellant’s appeal at 927 MDA 2018 for failure to file a brief.
Upon application by Appellant’s counsel, this Court reinstated Appellant’s
appeal. Counsel ultimately filed an Anders brief and petition to withdraw as
counsel at each docket number. Before we reach counsel’s petition to
withdraw pursuant to Anders, we must address first the fact that Appellant
initially filed a single notice of appeal from an order resolving issues raised
at three docket numbers.
In Walker, our Supreme Court considered whether to quash an appeal
where one notice of appeal was filed for orders entered at more than one
docket number. The Official Note to Pennsylvania Rule of Appellate
Procedure 341(a) provides that “[w]here … one or more orders resolves [sic]
issues arising on more than one docket … separate notices of appeal must be
filed.” Pa.R.A.P. 341, Note. In Walker, our Supreme Court found that the
“Official Note to Rule 341 provides a bright-line mandatory instruction to
practitioners to file separate notices of appeal.” 185 A.3d at 976-77. Thus,
it held that for appeals filed after June 1, 2018, the date Walker was filed,
“when a single order resolves issues arising on more than one lower court
docket, separate notices of appeal must be filed.” Id. at 977. The Court
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emphasized that the “failure to do so will result in quashal of the appeal.”
Id.
In this case, on June 4, 2018, Appellant filed a single notice of appeal
from an order disposing of issues at three docket numbers. Because
Appellant filed his notice of appeal after our Supreme Court’s decision in
Walker, and failed to comply with Rule 341, we are bound by Walker to
quash this appeal.
We recognize Appellant’s belated attempt to comply with Walker by
filing two additional notices of appeal. However, our Supreme Court did not
carve out any exceptions in Walker, and we have no authority to create
exceptions ourselves. See Walker, 185 A.3d at 976-77 (holding that held
the note to Rule 341 provides a “bright-line mandatory” rule, and the failure
to comply with that rule will result in quashal).
Moreover, it is well-settled that this Court is prohibited from
enlarging the time to file a notice of appeal beyond the 30-day timeframe
absent fraud or a breakdown in the processes of a court. Pa.R.A.P. 105(b),
Note. Here, there was no fraud or a breakdown in the processes of a court.
Rather, counsel simply failed to follow the bright-line mandatory rule
announced in Walker. Thus, the per curiam order purportedly permitting
Appellant to file an amended notice of appeal beyond the 30-day timeframe
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was in error, and Appellant’s August 24, 2018 notices of appeal must be
quashed as untimely filed beyond the 30-day timeframe.
Accordingly, we are compelled to quash these appeals. See
Commonwealth v. Williams, 206 A.3d 573 (Pa. Super. 2019) (quashing
pro se prisoner’s notice of appeal, filed June 4 or 5, 2018, from an order
resolving issues related to four different docket numbers); Commonwealth
v. Burks, 102 A.3d 497, 500 (Pa. Super. 2014) (dismissing appeal as
untimely filed beyond 30-day timeframe where record contained no evidence
of a court holiday or breakdown in the operations of the court, which might
have excused an untimely filing).
Appeals quashed. Counsel’s petitions to withdraw denied as moot.
Judge McLaughlin joins this memorandum.
Judge Bowes files a concurring memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/13/2019
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Com. v. Cohick, T.
Combined Opinion