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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA SHANE MILLER :
:
Appellant : No. 536 MDA 2019
Appeal from the PCRA Order Entered March 26, 2019
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0001161-2017,
CP-40-CR-0001682-2016
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
JUDGMENT ORDER BY DUBOW, J.: FILED JANUARY 16, 2020
Appellant, Joshua Shane Miller, appeals from the Order entered March
26, 2019, after the Luzerne County Court of Common Pleas dismissed his
Petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§
9541-9546. Appellant’s counsel has filed a “No Merit/Turner Finley1 Brief”
and an Application to Withdraw as Counsel. Upon review, we quash this appeal
pursuant to Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), and deny
counsel’s Motion to Withdraw as moot.
On October 24, 2018, Appellant entered guilty pleas at two different
docket numbers: Docket No. 1682-2016 (Possession of a Firearm Prohibited)
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 Commonwealth v. Turner, 544 A.2d 927 (Pa. Super.
1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
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and Docket No. 1161-2017 (Possession of a Controlled Substance Contraband
by Inmate). On the same date, the trial court sentenced Appellant for both
convictions to an aggregate term of 48 to 96 months of incarceration.
Appellant did not file a post-sentence motion or a direct appeal.
On April 6, 2018, Appellant filed a pro se PCRA Petition, listing both
Docket Nos. 1682-2016 and 1161-2017.2 On December 11, 2018, the court
appointed counsel, Leonard Gryskewicz, Esq.3 Attorney Gryskewicz filed a
Supplemental PCRA Petition, which also listed Docket Nos. 1682-2016 and
1161-2017. On March 26, 2019, the court held a PCRA hearing, and “denied
and dismissed [Appellant’s] PCRA [P]etition in its entirety.” N.T. PCRA
Hearing, 3/26/19, at 71.
On April 2, 2019, Appellant filed a counseled Notice of Appeal listing
Docket Nos. 1682-2016 and 1161-2017.4 Attorney Gryskewicz filed,
simultaneously with the Notice of Appeal, a Motion for the Appointment of
Substitute Appellate Counsel. The court thereafter appointed Matthew Kelly,
Esq., to represent Appellant in this appeal. Attorney Kelly filed an ordered
____________________________________________
2Appellant filed another pro se PCRA Petition on June 12, 2018, listing Docket
Nos. 4285-09, 1682-2016, and 1161-2017.
3On November 27, 2018, the court initially appointed Jeffrey Yelen, Esq., as
PCRA counsel.
4 Appellant filed only one Notice of Appeal in the lower court, which the court
clerk noted in each of the dockets. The actual Notice of Appeal is contained
only within the certified record pertaining to docket number 1682-2016.
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Pa.R.A.P. 1925(b) Statement, and the PCRA court issued an Opinion pursuant
to Pa.R.A.P. 1925(a).
Appellate counsel filed a “No Merit/Turner Finley Brief” and Application
to Withdraw as Counsel with this Court. Appellant has not filed a response.
In Commonwealth v. Walker, the Supreme Court of Pennsylvania
addressed the issue of filing separate notices of appeal when a single order
resolves issues arising on more than one trial court docket, and held that
“prospectively, where a single order resolves issues arising on more than one
docket, separate notices of appeal must be filed for each case. . . . The failure
to do so will result in quashal of the appeal.” 185 A.3d at 971, 977 (footnote
omitted).
Because Appellant filed his appeal after the Supreme Court decided
Walker, this Court issued an Order on May 17, 2019, directing Appellant to
show cause why the appeal should not be quashed pursuant to Walker.
Appellant’s counsel replied that Walker is distinguishable because that case
involved four different criminal defendants where the Commonwealth filed one
notice of appeal, whereas in this case, Appellant filed one Notice of Appeal
listing the two docket numbers included in the sentencing order. The Court
discharged the show-cause Order on June 11, 2019.
It is undisputed that Appellant filed a single Notice of Appeal from an
Order filed at two docket numbers. Because Appellant filed his Notice of Appeal
after our Supreme Court’s decision in Walker, we must quash this appeal.
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See Commonwealth v. Williams, 206 A.3d 573, 576 (Pa. Super. 2019)
(quashing non-compliant notice of appeal filed after Walker).
Appeal quashed. Application to Withdraw as Counsel denied as moot.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/16/2020
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