Com. v. Martorell, E. ( 2018 )

J-S69038-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERIC CARLO MARTORELL :
:
Appellant : No. 525 MDA 2018
Appeal from the Order Entered February 28, 2018
In the Court of Common Pleas of Lebanon County Criminal Division at
No(s): CP-38-CR-0000835-2009
BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED: NOVEMBER 9, 2018
Eric Carlo Martorell (Appellant), acting pro se, purports to appeal from
the order denying his Motion Asking to Correct and Apply RRRI Sentence.
Upon review, we have determined that Appellant has not appealed from the
denial of his Motion Asking to Correct and Apply RRRI Sentence, but rather
from the order denying his Motion for Time Credit. Moreover, the trial court
never ruled on Appellant’s Motion Asking to Correct and Apply RRRI Sentence,
such that there is no order to appeal with respect to that request. Accordingly,
we dismiss the appeal.
The trial court summarized the background of this case as follows:
[Appellant] was charged and sentenced on nine (9) separate
counts for offenses under the Controlled Substance, Drug, Device
and Cosmetic Act. [Appellant] received a sentence of 10-20 years
for the crimes committed. The sentence was imposed on
September 30, 2009. During sentencing, the court determined
that [Appellant] was not eligible for the Recidivism Risk Reduction
Incentive (“RRRI”) due to his past record, which included a guilty
J-S69038-18
plea of Recklessly Endangering Another Person (“REAP”) pursuant
to 18 Pa.C.S.A. § 2705 and Former Convict Not to Own Firearm
pursuant to 18 Pa.C.S.A. § 6105.
***
[On January 21, 2016, Appellant] filed a PCRA [petition],
which we denied [on August 24, 2016] as untimely following a
hearing. [Appellant] appealed our denial. The Superior Court
affirmed our decision and the Supreme Court denied the petition
for allowance of appeal. [Commonwealth v. Martorell, 1453
MDA 2016 (Pa. Super. Mar. 1, 2017) (unpublished
memorandum).]
[Appellant] filed his next pro se motion, titled as a Motion
Asking to Correct and Apply RRRI Sentence on November 15,
2017. For reasons unknown to this court, we did not
address [Appellant’s] Motion. [Appellant] then filed a Notice
of Appeal on March 21, 2018 contending that his Motion was
denied by operation of law. We issued an Order pursuant to
Pa.R.A.P. 1925(b) and [Appellant] filed his Concise Statement on
April 18, 2018. [Appellant’s] Concise Statement presents only the
question of whether the Court should have addressed his Motion
in light of the Cullen-Doyle decision and alleged that any
ambiguity around the meaning of the word “history” must be
resolved in favor of those asking to be RRRI eligible.
Trial Court Opinion, 6/1/18, at 2, 4 (emphasis added).
Our review confirms that on November 15, 2017, Appellant filed a
Motion Asking to Correct and Apply RRRI Sentence. The trial court did not
respond. Approximately three months later, on February 14, 2018, Appellant
filed a Motion for Time Credit. On February 28, 2018, the trial court entered
an order denying Appellant’s Motion for Time Credit. As noted by the trial
court, “For reasons unknown to this court, we did not address [Appellant’s]
Motion [Asking to Correct and Apply RRRI Sentence].” Trial Court Opinion,
6/1/18, at 4. On March 21, 2018, Appellant filed a notice appeal specifically
stating that he was appealing from the order denying his “Motion Asking To
-2-
J-S69038-18
Correct and Apply RRRI Sentence docketed November 15, 2017 denied by
operation of law.” However, this is a misstatement because there is no order
on the trial court docket indicating that the November 15, 2017 motion was
denied by operation of law – or otherwise addressed or disposed of by the trial
court. A review of our Superior Court docket indicates that the “order
appealed from” is dated February 28, 2018, i.e., the trial court order denying
Appellant’s February 14, 2018 motion for time credit.
Given the procedural missteps in this case, we dismiss the appeal. In
so doing, we direct Appellant and the trial court to the language of the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9542, which provides that the
PCRA shall be “the sole means of obtaining collateral relief and encompasses
all other common law and statutory remedies. . .”; see also Commonwealth
v. Johnson, 803 A.2d 1291, 1293 (Pa. Super. 2002) (holding that “any
petition filed after the judgment of sentence becomes final will be treated as
a PCRA petition.”).
Appeal dismissed.
Judge Lazarus joins the memorandum.
P.J.E. Bender concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2018
-3-