Com. v. Decker, F. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
FREDERICK JOSEPH DECKER JR. :
:
Appellant : No. 1685 EDA 2019
Appeal from the PCRA Order Entered May 14, 2019
In the Court of Common Pleas of Pike County Criminal Division at No(s):
CP-52-CR-0000428-2014,
CP-52-CR-0000692-2014
BEFORE: LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY LAZARUS, J.: Filed: March 20, 2020
Fredrick Joseph Decker, Jr., appeals from the order, entered in the Court
of Common Pleas of Pike County, denying his petition filed pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Counsel also
seeks to withdraw her representation on appeal pursuant to Anders v.
California, 386 U.S. 738 (1967), and its progeny.1 After review, we are
constrained to quash this appeal.
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1 Counsel erroneously seeks to withdraw under Anders, supra, instead of
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). See Commonwealth
v. Smith, 700 A.2d 1301 (Pa. Super. 1977) (counsel seeking to withdraw on
direct appeal must satisfy Anders requirements while counsel seeking to
withdraw from post-conviction representation under PCRA must satisfy
Turner and Finley). We may, however, still review the petition to withdraw,
because an Anders brief provides a defendant greater protection than a
Turner/Finley letter. Commonwealth v. Widgins, 29 A.3d 816 n.2 (Pa.
Super. 2011).
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On October 15, 1993, Decker was convicted of first degree sexual abuse
in the state of New York. At the time of his conviction, New York had no
registration requirements for sexual offenders. In 2014, Decker was charged
under two separate criminal dockets in Pike County, Pennsylvania, stemming
from his 1993 conviction in New York. On or about June 14, 2014, at docket
number 428-2014, Decker was charged with failure to comply with
registration of sexual offender requirements2 and failure to verify address or
photograph as required,3 after Decker relocated from New York to
Pennsylvania without notifying the Pennsylvania State Police of his change of
address. On or about November 12, 2014, at docket number 692-2014,
Decker was charged with failure to comply with registration of sexual offender
requirements for failing to notify Pennsylvania State Police of his employment
with Best Western Inn in Hunts Landing, Pennsylvania, where he allegedly
worked from July 2004 to July 2014.
On or about January 8, 2015, the two criminal matters were
consolidated pursuant to Pa.R.C.P. 582 (providing offenses charged in
separate indictments may be tried together if evidence of each would be
admissible in trial for the other and offenses are based on same act). Decker
proceeded to trial on docket number 428-2014, was ultimately convicted of
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2 18 Pa.C.S.A. § 4915(a)(1).
3 18 Pa.C.S.A. § 4915(a)(2).
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the crimes charged, and was sentenced to a term of imprisonment of seven
to fourteen years. Decker filed an appeal, which was ultimately withdrawn
pursuant to a plea agreement on docket number 692-2014. On docket
number 692-2014, Decker entered a guilty plea to failure to comply with
registration of sexual offender requirements on September 3, 2015, and was
sentenced on December 3, 2015 to a term of imprisonment of six to twelve
years.
Decker timely filed a pro se PCRA petition on October 26, 2016, alleging
ineffective assistance of counsel, after-discovered evidence, and that his guilty
plea was unlawfully induced. The court appointed PCRA counsel on November
1, 2016. On August 15, 2018, Decker filed an amended PCRA petition through
counsel, arguing constitutional violations based on Commonwealth v.
Muniz, 164 A.3d 1189 (Pa. 2017), and that his sentence was greater than the
lawful maximum.
By order dated May 14, 2019, the PCRA court denied Decker’s amended
PCRA petition. On June 13, 2019, Decker timely filed a single notice of appeal
listing the two lower court docket numbers, 428-2014 and 692-2014. On June
19, 2019, this Court issued a rule to show cause as to why the appeal should
not be quashed in light of Commonwealth v. Walker, 185 A.3d 969 (Pa.
2018) (holding that “where a single order resolves issues arising on more than
one docket, separate notices of appeal must be filed for each of those cases”).
Decker did not file a response. Instead, Decker filed two separate notices of
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appeal with the trial court on July 15, 2019, each listing one trial court docket
number: the appeal at docket number 2064 EDA 2019 listed only 428-2014,
and the appeal at docket number 2065 EDA 2019 listed only 692-2014.
Ultimately, on October 4, 2019, this Court quashed both appeals as untimely.
Order, 10/4/19, at 1 (2064 EDA 2019); Order, 10/4/19, at 1 (2065 EDA
2019).
On July 22, 2019, Decker filed a “Petition For Leave of Court to Amend
the Notice of Appeal and Submit Nunc Pro Tunc” with this Court regarding his
original June 13, 2019, notice of appeal implicating Walker. On August 27,
2019, this Court entered an order discharging the rule to show cause as to
why the appeal should not be quashed pursuant to Walker, and informed the
parties that both the Walker issue and Decker’s petition to amend and submit
his notice of appeal nunc pro tunc would be referred to the panel of this Court
assigned to decide the merits of the appeal. Order, 8/27/19, at 1.
Accordingly, before us presently are Decker’s timely appeal of the trial
court’s order dated May 14, 2019, denying his PCRA Petition, docketed at
number 1685 EDA 2019, and his “Petition For Leave of Court to Amend the
Notice of Appeal and Submit Nunc Pro Tunc.” Decker has not addressed
Walker in either his appellate brief or his petition, but concedes in the petition
that the notice of appeal docketed at 1685 EDA 2019 failed to comply with
Pa.R.A.P. 341(a) (requiring separate notices of appeal for orders resolving
issues on more than one docket). Petition, 7/22/19, at 1.
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“Before we can reach the merits of [Decker’s] appeal, we must address
the fact that he filed a single notice of appeal for an order that resolved issues
relating to [two] different docket numbers.” Commonwealth v. Williams,
206 A.3d 573, 574 (Pa. Super. 2019). The Official Note to Rule 341 of the
Pennsylvania Rules of Appellate Procedure provides that where “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,
Official Note (emphasis added).
In Walker, supra, our Supreme Court construed the Official Note to
Rule 341 as creating a “bright-line mandatory instruction to practitioners to
file separate notices of appeal,” and, accordingly, determined that “the failure
to do so requires the appellate court to quash the appeal.” 185 A.3d at 971-
77 (emphasis added). The Court specified that because this mandate is
contrary to decades of case law, this requirement only applies to appeals filed
after June 1, 2018. Id.
Instantly, Decker’s notice of appeal was filed after June 1, 2018.
Pursuant to Walker, Decker was required to file a separate notice of appeal
for each lower court docket number. Id. Because he did not do so, we are
constrained to quash this appeal.
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Appeal quashed. Petition to withdraw as counsel denied as moot.4
Petition to appeal nunc pro tunc denied.5
President Judge Emeritus Ford Elliott joins this Memorandum.
Judge McLaughlin concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/20/20
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4Because we are constrained to quash this appeal under Walker, supra, we
are unable to determine whether Decker’s appeal is wholly frivolous.
Accordingly, we deny counsel’s petition to withdraw as moot.
5 We are hesitant to create an avenue for appellants to avoid the mandate of
Walker. The most prudent practice for appellants is to submit applications
for nunc pro tunc appeals with the trial court or the PCRA court, as the case
may be. See e.g., Commonwealth v. Martin, 220 A.3d 664 (Pa. Super.
2019). Our denial of the relief Decker seeks here does not foreclose him from
filing an application with the proper tribunal.
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