Com. v. Hinton, V. ( 2017 )


Menu:
  • J-S82017-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF                         :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                            :        PENNSYLVANIA
    :
    :
    v.                         :
    :
    :
    VICTORIO HINTON                         :
    :   No. 173 WDA 2017
    Appellant
    Appeal from the PCRA Order June 3, 2016
    In the Court of Common Pleas of Allegheny County Criminal Division at
    No(s): CP-02-CR-0011856-1995
    BEFORE:    BENDER, P.J.E., STEVENS*, P.J.E., and STRASSBURGER**, J.
    MEMORANDUM BY STEVENS, P.J.E.:                  FILED DECEMBER 22, 2017
    Appellant, Victorio Hinton, after filing a pro se document entitled
    “Modification of Sentence Nunc Pro Tunc,” filed a pro se notice of appeal. We
    quash this appeal.
    The relevant facts and procedural history underlying this appeal have
    been set forth previously by this Court as follows:
    In January 1996, after being extradited from Washington
    state, Appellant entered a negotiated guilty plea to third degree
    murder. The court immediately sentenced Appellant to the
    negotiated term of incarceration, eight and one-half to twenty-
    one years.
    In May 2004, Appellant filed a petition for writ of habeas
    corpus, arguing that the Commonwealth had breached its
    contractual agreement by incarcerating him past his minimum
    ____________________________________
    * Former Justice specially assigned to the Superior Court.
    ** Retired Senior Judge assigned to the Superior Court.
    J-S82017-17
    sentence. The PCRA[1] court treated this petition as a request for
    PCRA relief. Appointed counsel submitted a Turner/Finley2 “no
    merit” letter, which the court granted. The PCRA court denied
    Appellant’s petition; Appellant did not appeal to this Court.
    On October 29, 2015, Appellant filed a petition for writ of
    habeas corpus, which the court treated as a petition requesting
    PCRA relief, as it challenged the validity of his conviction. 3 After
    sending Appellant notice of intent to dismiss pursuant to
    Pa.R.Crim.P. 907, [in an order dated June 2, 2016, and entered
    on June 3, 2016,] the PCRA court denied his petition as untimely
    filed.
    Appellant timely appealed [on June 17, 2016, and this Court
    docketed the appeal at 1066 WDA 2016].
    Commonwealth v. Hinton, No. 1066 WDA 2016, *1-2 (Pa.Super. filed
    4/17/17) (unpublished memorandum) (citations to record omitted) (footnote
    added).
    After a careful review, this Court concluded that the PCRA court properly
    treated Appellant’s October 29, 2015, habeas corpus petition under the
    auspices of the PCRA. See 
    id. Additionally, we
    concluded that the petition
    was untimely filed and Appellant did not meet any of the timeliness
    ____________________________________________
    1   Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.
    2Commonwealth v. Turner, 
    544 A.2d 927
    (Pa. 1988); Commonwealth v.
    Finley, 
    550 A.2d 213
    (Pa.Super. 1988).
    3 In the petition, Appellant argued that he was entitled to habeas relief due to
    the Commonwealth’s failure to commence trial within one hundred twenty
    days of his extradition from Washington state, an alleged violation of 42
    Pa.C.S. § 9101.
    -2-
    J-S82017-17
    exceptions. See 
    id. Accordingly, on
    April 17, 2017, this Court affirmed the
    PCRA court’s order, which was dated June 2, 2016, and entered on June 3,
    2016.4 See 
    id. Appellant did
    not file a petition for allowance of appeal to our
    Supreme Court from this Court’s decision filed on April 17, 2017.
    During the interim, while Appellant’s appeal docketed at 1066 WDA
    2016 was pending in this Court, on September 14, 2016, Appellant filed in the
    lower court a pro se document entitled “Modification of Sentence Nunc Pro
    Tunc” in which he challenged the computation of his sentence by the Bureau
    of Corrections. The lower court took no action relative to Appellant’s pro se
    filing.
    On January 24, 2017, Appellant filed a notice of appeal to this Court
    indicating that he was appealing to this Court because the lower court failed
    to dispose of his “Modification of Sentence Nunc Pro Tunc” within 120 days.
    He indicated in the notice of appeal that he was deeming the motion denied
    by operation of law; he noted that no new order had been issued since the
    PCRA court’s filing of the prior June 3, 2016, order.
    This Court docketed Appellant’s January 24, 2017, notice of appeal at
    173 WDA 2017, and since there was no new lower court order, we designated
    ____________________________________________
    4We note that this Court mistakenly indicated in its unpublished memorandum
    that the PCRA court’s order was “entered June 2, 2016[.]” See 
    id. at *
    1.
    However, a further review of the record confirms that, although the PCRA
    court’s order was dated June 2, 2016, it was entered on the lower court’s
    docket with notice provided to the parties on June 3, 2016.
    -3-
    J-S82017-17
    the last order entered in this matter (June 3, 2016) as the appealed from
    order. The appeal docketed at 173 WDA 2017 is the appeal currently before
    us.5
    Appellant presents the following issues for our review, which we
    reproduce verbatim:
    1. Can the Commonwealth waive or dismiss an issue pertaining
    to a sentence, as untimely?
    2. Does the lower court, i.e., the Court of Common Pleas, have
    the jurisdiction to correct patent errors in the record according
    to 42 Pa.C.S. § 5505, beyond the 30-day statutory limit?
    3. Is a negotiated plea agreement between a defendant and the
    Commonwealth Court, a contract that must be honored by all
    parties involved?
    Appellant’s Brief at 4.
    Before addressing the merits of Appellant’s claims, we must determine
    whether the matter is properly before us. “We do not have jurisdiction over
    non-appealable orders.” Commonwealth v. Frey, 
    41 A.3d 605
    , 609
    (Pa.Super. 2012).       An order is appealable if it is: (1) a final order, see
    Pa.R.A.P. 341-342; (2) an interlocutory order appealable by right or
    permission, see 42 Pa.C.S. § 702(b); Pa.R.A.P. 311-312, 1311-1312; or (3) a
    collateral order, see Pa.R.A.P. 313.
    ____________________________________________
    5 Understandably, there has been some confusion with regard to the instant
    appeal. For instance, when this Court informed the lower court that the record
    in this matter was overdue, the PCRA court filed an opinion dated August 29,
    2017, urging this Court to dismiss the instant appeal as duplicative of the
    appeal docketed at 1066 WDA 2016. However, the PCRA court is incorrect in
    this regard.
    -4-
    J-S82017-17
    Here, in the instant notice of appeal, Appellant admits that the lower
    court has neither entered an order nor taken any action with regard to his
    “Modification of Sentence Nunc Pro Tunc.” Instead, he indicates that he has
    himself deemed the motion denied by operation of law. However, there is no
    such authority for Appellant to do so in order to invoke our jurisdiction.
    Accordingly, Appellant’s appeal is clearly premature, and we quash it on this
    basis. 6
    Appeal quashed. Jurisdiction relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/22/2017
    ____________________________________________
    6  As 
    suggested supra
    , in his “Modification of Sentence Nunc Pro Tunc,”
    Appellant challenged the computation of his sentence by the Bureau of
    Corrections. We note this Court has held generally that “[i]f the alleged error
    is thought to be the result of an erroneous computation of sentence by the
    Bureau of Corrections, then the appropriate vehicle for redress would be an
    original action in the Commonwealth Court challenging the Bureau’s
    computation.” Commonwealth v. Heredia, 
    97 A.3d 392
    , 395 (Pa.Super.
    2014) (citation omitted)). However, here, where the lower court has not yet
    considered Appellant’s motion, we decline to make a determination in this
    regard or analyze the motion further.
    -5-
    

Document Info

Docket Number: 173 WDA 2017

Filed Date: 12/22/2017

Precedential Status: Non-Precedential

Modified Date: 12/13/2024