Com. v. Hayes, S. ( 2020 )

J-S07039-20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SYLVAN HAYES, :
:
Appellant : No. 2578 EDA 2018
Appeal from the PCRA Order Entered August 17, 2018
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007533-2009
CP-51-CR-0007534-2009
BEFORE: NICHOLS, J., KING, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 04, 2020
Sylvan Hayes (Appellant) appeals from the August 17, 2018 order
dismissing his petition filed under the Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541-9546. Upon review, we quash this appeal.
In light of our disposition, a detailed recitation of the underlying facts
is unnecessary. Pertinent to this appeal, on June 23, 2011, Appellant
entered into an open guilty plea, whereby he pleaded guilty to two counts
each of attempted murder, aggravated assault, possessing an instrument of
crime, and terroristic threats.1 On November 6, 2012, Appellant was
sentenced to two consecutive terms of 12 ½ to 25 years of incarceration for
attempted murder, with no further penalty on the remaining crimes.
1There were two victims in this case, and Appellant was charged at separate
docket numbers with the same charges for each victim.
* Retired Senior Judge assigned to the Superior Court.
J-S07039-20
After the reinstatement of his right to file a direct appeal nunc pro
tunc, Appellant filed a notice of appeal to this Court on July 8, 2016.
Appellant subsequently withdrew that appeal and filed timely the PCRA
petition at issue in this case. Counsel was appointed, and he filed several
amended PCRA petitions, raising various claims including the ineffective
assistance of trial counsel for letting Appellant enter into an unknowing and
involuntary guilty plea. On August 17, 2018, the PCRA court denied
Appellant PCRA relief.2 On August 30, 2018, Appellant timely filed a single
notice of appeal, which listed both docket numbers.3
On appeal to this Court, Appellant contends the PCRA court erred in
“denying [A]ppellant an evidentiary hearing on the issue of trial [] counsel’s
failure to file a motion to withdraw guilty plea before sentence when the
guilty plea was not knowing, intelligent and voluntary[.]” Appellant’s Brief at
2. Prior to reaching the merits of this appeal, we must consider whether it
2 The PCRA court did not issue notice of its intent to dismiss the PCRA
petition pursuant to Pa.R.Crim.P. 907. See Pa.R.Crim.P. 907. Although this
requirement is mandatory, see Commonwealth v. Boyd, 923 A.2d 513,
514 n.1 (Pa. Super. 2007), the failure to raise this defect on appeal results
in waiver of this claim. See Commonwealth v. Zeigler, 148 A.3d 849, 851
n.2 (Pa. Super. 2016). Here, Appellant has not raised this issue on appeal;
therefore, it is waived.
3 Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
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should be quashed in light of our Supreme Court’s holding in
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018).4
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.” Id. 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 emphasized
that the “failure to do so will result in quashal of the appeal.” Id.
In this case, on August 30, 2018, Appellant filed a single notice of
appeal from an order dismissing Appellant’s PCRA petition filed at two 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 must
4 On March 5, 2019, this Court issued a rule to show cause on Appellant as
to why this appeal should not be quashed pursuant to Walker. On March
11, 2019, counsel responded that Walker “does not apply because it was a
Commonwealth appeal from four cases that involved four different
defendants. This case involves one defendant and all issues are identical.”
Response to Rule to Show Cause, 3/11/2019, at ¶ 3. The rule was
discharged and the issue was deferred to this panel for consideration.
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quash this appeal. See Commonwealth v. Nichols, 208 A.3d 1087 (Pa.
Super. 2019) (quashing appeal from order denying timely-filed PCRA petition
listing three docket numbers).
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/4/20
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