Com. v. King, T.

J. S40003/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
THOMAS JAY KING, : No. 1981 WDA 2013
:
Appellant :
Appeal from the Judgment of Sentence, November 25, 2013,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0010025-2009
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 28, 2015
This is an appeal from the judgment of sentence entered in the Court
of Common Pleas of Allegheny County following appellant’s conviction on two
counts of aggravated assault, 18 Pa.C.S.A. § 2702(a)(1), (4). Appellant
contends the evidence was insufficient to sustain his convictions. We quash.
On August 8, 2011, appellant appeared before the Honorable David R.
Cashman for a jury trial. At the close of the trial, appellant was found guilty
of both charges. Sentencing was postponed pending the preparation of a
pre-sentence report. On November 4, 2011, the trial court sentenced
appellant to a term of three to six years’ imprisonment for aggravated
assault causing serious bodily injury, to be followed by a five-year
probationary term at the second count. Neither post-sentence motions nor a
direct appeal was filed. On December 12, 2012, appellant, acting pro se,
* Former Justice specially assigned to the Superior Court.
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filed a petition pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546. Counsel was appointed and on August 26,
2013, filed a Turner/Finley no-merit letter and sought to withdraw.1 In her
no-merit letter, appellant’s counsel advised that the petition was untimely
and no time-bar exceptions applied.2 (Docket #25 at 1). Counsel also
pointed out that the sentencing court failed to address appellant’s Recidivism
Risk Reduction Incentive (“RRRI”) status. (Id. at 3).
A hearing was held on November 25, 2013, to address the court’s
failure to consider appellant’s RRRI eligibility. After the hearing, the
following order was entered:
And now 11-25-2013 in open court with the
defendant present, after consideration of the Post
Conviction Relief Act (PCRA) Petition, being
GRANTED, the SENTENCE imposed on 4th day of
November, 2011, be Vacated and a new sentence be
imposed. Appellate Right[sic] are Reinstated.
Docket #28.
The court entered a “Modified Order of Sentence” on November 25,
2013, that re-imposed appellant’s original sentence and added “Defendant is
NOT RRRI ELIGIBLE.” (Docket #27.) This appeal followed.
1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988 Pa.) (en banc).
2
Counsel also examined the applicability of the prisoner mailbox rule and
determined appellant’s PCRA petition was postmarked five days beyond the
one-year deadline. (Docket #25 at 5 n.5.)
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It is undisputed that the PCRA petition was untimely filed. “The
PCRA’s time restrictions are jurisdictional in nature. Thus, [i]f a PCRA
petition is untimely, neither this Court nor the trial court has jurisdiction
over the petition. Without jurisdiction, we simply do not have the legal
authority to address the substantive claims.” Commonwealth v. Albrecht,
994 A.2d 1091, 1093 (Pa. 2010), quoting Commonwealth v. Chester, 895
A.2d 520, 522 (Pa. 2006).
Here, the trial court re-imposed appellant’s sentence while adding
language to the sentencing order that appellant was not RRRI eligible.
Neither the Commonwealth nor appellant is questioning the power of the
trial court to correct an allegedly illegal sentencing order absent jurisdiction
pursuant to 42 Pa.C.S.A. § 5505, Modification of Orders,3 or the PCRA.
Nevertheless, we believe this case is amenable to the exercise by a
trial court of the inherent power to correct patent errors despite the absence
of traditional jurisdiction. See Commonwealth v. Holmes, 933 A.2d 57,
65 (Pa. 2007). A “patent error” or “patent mistake” is a fact that is apparent
from a review of the docket without resorting to third-party information. Id.
at 66. Here, it is clear from the original sentencing order that the trial court
3
§ 5505. Modification of orders
Except as otherwise provided or prescribed by law, a
court upon notice to the parties may modify or
rescind any order within 30 days after its entry,
notwithstanding the prior termination of any term of
court, if no appeal from such order has been taken
or allowed.
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failed to include whether defendant was or was not RRRI eligible. Therefore,
we believe the trial court could correct its sentencing order.
However, we conclude the trial court erred when it granted appellant’s
untimely PCRA petition and restored appellant’s direct appeal rights. We
note the Commonwealth was in agreement with the trial court’s actions of
reinstating appellant’s direct appeal rights. (Notes of testimony, 11/25/13
at 3.) However, it is axiomatic that jurisdiction cannot be conferred by
stipulation. See Commonwealth v. Fairiror, 809 A.2d 396, 397
(Pa.Super. 2002) (all requests for reinstatement of appellate rights,
including PCRA appellate rights, must meet the timeliness requirements of
the PCRA), appeal denied, 827 A.2d 429 (Pa. 2003). Appellant is now
arguing sufficiency of the evidence to sustain his conviction and not the
modification of his sentence. This he cannot do.
Accordingly, we quash this appeal.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2015
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