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*Retired Senior Judge assigned to the Superior Court. NON - PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37 COMMONWEALTH OF PENNSYLVANIA,

Appellee

v. PATRICK L. COOK ,

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PE NNSYLVANIA

No. 427 MDA 2019 Appeal from the PCRA Order Entered February 21, 2019 in the Court of Common Pleas of Mifflin County Criminal Division at No(s): CP

- 44

- CR

- 0000517

- 2012 COMMONWEALTH OF PENNSYLVANIA,

Ap pellee

v. PATRICK L. COOK ,

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 428 MDA 2019 Appeal from the PCRA Order Entered February 21, 2019 in the Court of C ommon Pleas of Mifflin County Criminal Division at No(s): CP

- 44

- CR

- 0000087

- 2013
BEFORE: LAZARUS, J., MURRAY, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED JULY 29, 2020 Patrick L. Cook (Appellant) pro se appeals from the February 21,
2019 order dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541

- 9546. Upon review , we affirm

. A prior panel of this Court summarized the factual and procedural history as follows.J

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- On Nove mber 13, 2013, following a jury trial at which Appellant proceeded pro se , but with the assistance of standby counsel, Appellant was convicted of aggravated indecent assault, indecent assault, and corruption of minors. The offenses were perpetrated betwee n November 2004 and September 2007, and involved two females who were less than thirteen years of age. Another offense occurred in July 2010, and involved one of the earlier victims. Appellant appeared pro se at sentencing, but again had the benefit of standby counsel. The trial court imposed an aggregate sentence of eleven to twenty

- two years [of] imprisonment based on the application of two five[

- ]to

- [

- ]ten year mandatory minimum sentences for aggravated indecent assault on a child less than thirteen years old. Appellant, who had been determined to be a sexually violent predator, was also advised of the lifetime reporting requirements and what that entailed. Following pronouncement of sentence, the court advised Appellant of his post

- sentence and ap peal rights. Specifically, Appellant was told that he had the right to file a written post

sentence motion within ten days stating the particular relief sought. The court also advised Appellant that he had “the same right to assigned counsel as has exist ed through sentencing.” If he chose not to file a post

- sentence motion, the court explained that he had the option to appeal to the Superior Court within thirty days. Appellant was provided with a written acknowledgement of post

- sentence procedures. App ellant informed the trial court on the record that he wanted a transcript of the proceedings and he was advised to put that in writing either in his post

- sentence motion or in his appeal. Appellant did not file a [post

- sentence motion or] direct appeal f rom [the] judgment of sentence. Rather, on February 23, 2015, he filed a timely pro se PCRA petition. The court appointed counsel to represent him, and counsel filed an amended petition on May 7, 2015 on Appellant’s behalf. Appellant asserted that the c ourt’s failure to conduct a waiver

of

- counsel colloquy pur suant to Pa.R.Crim.P. 121 and it s denial of his request to permit standby counsel to assume representation during the trial resulted in the violation of his federal and state constitutional right[s] to counsel and soJ

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undermined the truth[

- ]determining process that no reliable adjudication of guilt or innocence could have taken place. Finally, Appellant maintained that although his waiver of right to counsel was voluntary, it was neither knowing nor intelligent, and that his performance at trial was so ineffective as to deprive him of a defense. The court scheduled a hearing on the amended petition. By order dated July 31, 2015, Matthew M. McClenahen, Esquire, was granted leave to withdraw as coun sel 2 and on August 6, 2015, attorney Steven P. Trialonas was appointed as counsel. Counsel filed a second amended PCRA petition on October 27, 2015, in which he averred that prior counsel had presented the only issues of merit. Following an evidentiary h earing on December 11, 2015, and the submission of briefs, the PCRA court denied relief on February 4, 2016.

______ 2 The trial court represents that Attorney McClenahen sought withdrawal due to threats made by Appellant.
Commonwealth v. Cook , 159 A.3d 5 8 (Pa. Super. 2016) (unpublished
memorandum at 1

- 4 ) (footnote and citations omitted). Upon appeal from denial of his PCRA petition, this Court denied Appellant relief on his counsel

- related issues, both because Appellant waived the claims by failing to pur sue them in a direct appeal, and because it found no merit to them in any event. However, [in light of Alleyne v. United States , 570 U.S. 99 (2013) , 1 ] this Court sua sponte vacated his judgment of sentence, which included two unconstitutional mandatory min imum sentences, and remanded for resentencing.
Pursuant to this Court’ s directive, the trial court resentenced Appellant on February 2, 2017, without consideration of the mandatory minimum statutes, and imposed an aggregate

1 In Alleyne , the United States Supreme Court held that any fact that increases the mandatory minimum sentence for a crime is an element of that crim e, and t herefore must be submitted to the trier of fact and proven beyond a reasonable doubt.J

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sentence of ten to 20 years of imprisonment. Appellant did not file a post

- sentence motion.
Commonwealth v. Cook , 175 A.3d 345, 347 (Pa. Super. 2017) (citations omitted). On appeal, this Court affirmed Appellant’s new judgment of sentence and granted counsel’s petition to withdraw. Id. at 351. Appellant did not file a petition for allowance of appeal with our Supreme Court

. On January 28, 2019, Appellant pro se filed the instant PCRA petition

. Appellant asserted his petition was timely filed pursuant to 42 Pa.C.S. § 954 5(b)(1)(ii ). 2 PCRA Petition, 1/28/2019, at 7. A ppellant did not state upon what newly

- discovered fact he was relying , n or otherwise elaborate on how this exception ha d been satisfied. On January 30, 2019, the PCRA court issued notice of its intent to dismiss Appe llant’s PCRA petition without a hearing, pursuant to Pa.R.Crim.P. 907, because it was untimely filed. 3 The PCRA Court dismissed Appellant’s PCRA petition on February 21, 2019. This appeal followed. 4 On March 11, 2019, Appellant pro se filed two
identical notices of appeal, each listing both docket numbers. The notices of

2 This subsection provides that “the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise o f due diligence[.]” 42 Pa.C.S. § 9545(b)(1)(ii).

3 Appellant filed a response after the PCRA petition was dismissed. See Objection to Intent to Dismiss, 2/25/2019.

4 Both Appellant and the PCRA court complied with Pa.R.A.P. 1925 . In lieu of an opin ion, the PCRA court referred this Court to its January 30, 2019 (Footnote Continued Next Page)J

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appeal were docketed in this Court separately and subsequently consolidated by this Court sua sponte

. On March 27, 2019, this Court sua sponte ordered
the PCRA court to determine whethe r Appellant wished to proceed pro se on appeal. Following a hearing on April 16, 2019, the PCRA court found that Appellant knowingly, intelligently, and voluntarily waived his right to counsel and desired to proceed pro se
. On April 30, 2019 , this Court issued an order directing Appellant to show cause why his appeal should not be quashed pursuant to Commonwealth v. Walker , 185 A.3d 969 (Pa. 2018)

. 5 Appellant did not file a response. On May 21, 2019, this Court discharged
the rule to show cause and refe rred the issue to the merits panel for disposition. Thus, we must first address whether Appellant has complied
with the dictates of Walker

. The Official Note to Rule 341, as amended in 2013, provides as
follows.
Where ... one or more orders resolves [ sic ] issues arising on more than one docket or relating to more than one judgm ent, separate notices of appeal must be filed. Commonwealth v. C.M.K. , 932 A.2d 111, 113 & n.3 (Pa. Super. 2007) (quashing appeal taken by single notice of appeal from order on rema nd for (Footnote Continued)

_______________________ opinion, as well as Commonwealth v. Cook , 159 A.3d 58 (unpublished memorandum). Order, 4/16/2019.

5 In Walker , our Supreme Court held that notices of appeal filed after June 1, 2018 must b e quashed if the appellant fails to file separate notices of appeal from a single order resolving issues arising on more than one lower court docket. 185 A.3d at 977.J

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consideration under Pa.R.Crim.P. 607 of two persons’ judgments of sentence). Pa.R.A.P. 341, Note.

In Walker , our Supreme Court construed the above

language as constituting “a bright

- line mandatory instruction to practitioners to file separate notic es of appeal.” Walker , 185 A.3d at 976

- 77. Therefore, the Walker Court held that “the proper practice under Rule 341(a) is to file separate appeals from an order that resolves issues arising on more than one docket. The failure to do so requires the appell ate court to quash the appeal.” Id. at 977.
Commonwealth v. Williams , 206 A.3d 573, 575 ( Pa. Super. 2019). However, because intermediate appellate courts had seldom quashed appeals as a result of violating the Note to Rule 341, the Walker Court held
that it s ruling would only apply prospectively to notices of appeal filed after June 1, 2018. Thus,
t he Walker Court directed that “ in future cases Rule 341 will, in accordance with its Official Note, require that when a single order resolves issues arising on more than one lower court docket, separate notices of appeal must be filed. The failure to do so will result in quashal of the appeal.” Id. [at 977] (emphasis added).
Williams , 206 A.3d at 575

- 76. Appellant’s notices of appeal were filed after June 1 , 2018, and therefore must comply with Rule 341 and Walker

. Here, Appellant filed two notices of appeal from two lower court docket numbers, listing both docket numbers on each notice of appeal. The notice of appeal docketed at 427 MDA 2019 is a photocop y of Appellant’s original notice of appeal, which wasJ

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docketed at 428 MDA 2019. Although one notice of appeal is a photocopy of
the other , the two notices of appeal bear independent , original time stamps. While Appellant’s two consolidated appeals were pending, an en banc panel of this Court concluded that Walker does not require that a notice of appeal contain only one docket number. Importantly, we observe that Rule 341 and Walker make no mention of case numbers on a notice of appeal. To be sure, the error in Walker was the filing of a single notice of appeal affecting multiple cases and several defendants. The bright

- line rule set forth in Walker only required an appellant to file a “ separate ” notice of appeal for each lower court docket the appellan t was challenging. Here, it is indisputable that Johnson filed a separate notice of appeal for each of the four dockets below, because he italicized only one case number on each notice of appeal. Unlike [ Commonwealth v. Creese , 216 A.3d 1142 (Pa. Super. 2 019)] , the clerk of courts played no role in typing four separate notices of appeal and italicizing the individual docket numbers on Johnson’s behalf. Based on our review of Walker and Rule 341, Johnson filed separate notices that perfected four appeals fr om each of the four common pleas court dockets. The fact that the notices contained all four lower court numbers is of no consequence. Indeed, the Rules of Appellate Procedure are to be liberally construed to effectuate justice. Pa.R.A.P. 105(a); see also 1 Pa.C.S.[] § 1928(c). We should not invalidate an otherwise timely appeal based on the inclusion of multiple docket numbers, a practice that the Rules themselves do not expressly forbid. By stating that each notice of appeal may contain only one number, Creese imposed upon appellants an additional requirement found in neither Walker nor Rule 341. Although our Supreme Court may adopt such a rule in the future, it did not do so in Walker

. As such, in so far as Creese stated “a notice of appeal may contain o nly one docket number,” 216 A.3d at 1144 (emphasis added), that pronouncement is overruled. Because Johnson appealed from four docket numbers and filed fourJ

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notices of appeal, Johson has complied with Walker . The fact that each notice of appeal listed all four docket numbers does not invalidate his notices of appeal, and we decline to quash his appeals.
Commonwealth v. Johnson , ___ A.3d ___, 2020 Pa. Super. 164 at * 11

- 12 (Pa. Super. 2020) (footnotes omitted). Like Johnson, Appellant filed separate notices of appeal for each
docket number. The fact s that Appellant included both docket number s on each notice of appeal and the underlying notices were photocopies of each
other are of no consequence. Appellant filed the notices of appeal independently, as evi denced by the distinct time stamps. Thus, Appellant
has complied with Rule 341 and Walker by filing a notice of appeal for each docket number, and quashal is not required here

. See Johnson, supra

. We may now review Appellant’s consolidated appeal. Ap pellant presents two claims for this Court’s consideration.
1. Did the original [PCRA] court err in denying the [PCRA] petition without a hearing by misapprehending the retrospective application in Commonwealth v. Hopkins , 117 A.3d 247 ([Pa. ] 2015)[,] when it’s [ sic ] paradigm, Alleyne [,] created a “substantive rule,” which “the Constitution requires state collateral review courts to give retroactive effect to that rule? ”
2. Do standby counsel’s inappropriate actions constitute per se ineffectiveness, pursuant to U.S. v. Cronic , 466 U.S. 648 (1984)[, ] when [Appellant] requested that counsel file a reconsideration of sentence, counsel assured said action would be completed, yet said reconsideration was never filed? Appellant’s Brief at 4 (unnecessary capitaliza tion omitted).J

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Before reaching the merits of Appellant’s claims, we must determine whether Appellant has timely filed his petition, as neither this Court nor the PCRA court has jurisdiction to address the merits of an untimely

- filed petition. Commonwealth v. Leggett , 16 A.3d 1144, 1145 (Pa. Super. 2011)

. Any PCRA petition, including second and subsequent petitions, must either (1) be filed within one year of the judgment of sentence becoming final, or (2) plead and prove a timeliness exception. 42 Pa.C. S. § 9545(b). Furthermore, the petition “shall be filed within one year of the date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2 )

. “For purposes of [the PCRA], a judgment [of sentence] becomes final at the conclusion of direct review, i ncluding discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3). Pertinent to this appeal,
a successful first PCRA petition do es not “reset the clock” for the calculation of the finality of the judgment of sentence for purposes of the PCRA where the relief granted in the first petitio n neither restored a petitioner’ s direct appeal rights nor disturbed his conviction, but, rat her, affected his sentence only

. Commonwealth v. McKeever , 947 A.2d 782, 785 ( Pa. Super. 2008) (c itation omitted). Here, Appellant was sentenced originally on February 28, 2014. Appellant did not file a post

- sentence motion or notice of appeal. Therefore,J

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his judgment of sentence became final on March 31, 2014, following the expiration of time for filing a notice of appeal. 6 Appellant timely filed a PCRA petition, which the PCRA court dismissed. On appeal, this Court denied Appellant’s counsel

- based claim s, but sua sponte vacated his sentence and remanded for resentencing pursuant to Alleyne

. Thus, following Appellant’s first PCRA petition, his direct appeal rights were not reinstated, nor were his convictions disturbed. Rather, the relief he
receive d from this Court on appeal from the dismissal of his PCRA conviction affected his sentence only. Therefore, his n e w judgment of s e nt e n c e did not
reset the clo c k “ for the calculation of the finality of the judgment of sentence for purposes of the PCRA.” McKeever , 947 A.2d at 785. As such, Appellant’s January 28, 2019 petition constituted a serial petition, and Appellant had until March 31, 2015 , to file timely a PCRA petition. Appellant’s January 28, 2019 PCRA petition was patently untimely , and Appella nt was required to plead and prove an exception to the PCRA’s time

bar

. In his petition, Appellant attempted to invoke the newly

- discovered facts exception to the PCRA’s time

- bar. To qualify for t his exception , “a petitioner need only establish that the f acts upon which the claim is based

6 See 1 Pa.C.S. § 1908 (“Whenever the last day of any such period shall fall on Saturd ay or Sunday, ... such day shall be omitted from the computation.”).J

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were unknown to him and could not have been ascertained by the exercise of due diligence.” Commonwealth v. Burton , 158 A.3d 618, 629 (Pa. 2017) (some citations omitted). “Due diligence demands that the petitioner
take r easonable steps to protect his own interests. A petitioner must explain why he could not have obtained the new fact(s) earlier with the exercise of due diligence.” Commonwealth v. Monaco , 996 A.2d 1076, 1080 (Pa. Super. 2010) (citations omitted). Appell ant did not state in his petition what newly

- discovered fact he was referencing, or when he learned of the alleged newly

- discovered fact. Accordingly, Appellant has failed to establish this exception. Based on the foregoing, we conclude that Appellant’s PCRA p etition was filed untimely, and he has not asserted a valid exception to the timeliness requirements. Thus, he is not entitled to relief. See Commonwealth v. Albrecht , 994 A.2d 1091, 1095 (Pa. 2010) (affirming dismissal of PCRA petition without a
h earing because the appellant failed to meet burden of establishing timeliness exception).
Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary
Date: 07/29/2020