J-S46041-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TERRY L. HUNT, :
:
Appellant : No. 2300 MDA 2013
Appeal from the Order entered on November 20, 2013
in the Court of Common Pleas of Dauphin County,
Criminal Division, No. CP-22-CR-0002174-2000
BEFORE: SHOGAN, LAZARUS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 20, 2014
pro se, from the Order denying his
Motion for Correction of Sentencing Order. We affirm.
The trial court set forth the relevant facts as follows:
This matter arises out of a shooting which occurred on March 28,
vehicle in the city of Harrisburg, when they spotted a vehicle
previously had a number of violent encounters. [] Chevelle
-]year[-]old child [] were
his vehicle, [Hunt] aimed a gun and shot three times into the car
driven by Holland. One of the bullets struck the child in the arm;
Holland and [] Clayton received injuries from shattered glass and
bullet fragments.
Trial Court Opinion, 2/20/14, at 1.
Following a jury trial, Hunt was found guilty of three counts of
attempted homicide, and one count each of criminal conspiracy (attempted
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homicide), recklessly endangering another person and persons not to
possess a firearm.1 On March 16, 2001, the trial court sentenced Hunt to an
aggregate sentence of 23 to 46 years in prison, to be served consecutively
to another prison sentence of 3 to 7 years previously imposed on Hunt for
drug charges.
Following a procedural history not herein relevant, this Court affirmed
allowance of appeal. Commonwealth v. Hunt, 852 A.2d 1248 (Pa. Super.
2004) (unpublished memorandum), appeal denied, 860 A.2d 122 (Pa.
2004). On April 21, 2005, Hunt filed a Petition for relief pursuant to the Post
2
which was dismissed by the PCRA court on
Petition, and the Pennsylvania Supreme Court denied allowance of appeal.
Commonwealth v. Hunt, 935 A.2d 13 (Pa. Super. 2007) (unpublished
memorandum), appeal denied, 940 A.2d 363 (Pa. 2007).
On September 9, 2013, Hunt filed, pro se, a Motion for Correction of
Sentence, which the trial court denied on September 17, 2013. On
November 7, 2013, Hunt filed, pro se, the instant Motion for Correction of
1
See 18 Pa.C.S.A. §§ 901, 2501, 903, 2705, 6106.
2
See 42 Pa.C.S.A. §§ 9541-9546.
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Sentencing Order, which the trial court denied on November 20, 2013.3 On
December 26, 2013, Hunt filed a Notice of Appeal of the November 20, 2013
Order.4 On January 7, 2014, the trial court ordered Hunt to file a Pa.R.A.P.
1925(b) concise statement of matters complained of on appeal. Hunt filed a
timely Concise Statement.
On appeal, Hunt raises the following question for our review:
Correction of Sentencing Order, where there is a clear clerical
error, which the trial court has the inherent power to correct,
and this is affecting the Pennsylvania Department of Corrections
calculation of his sentence, causing him to serve more time than
what was imposed by the sentencing [j]udge?
Brief for Appellant at 4.
The PCRA provides the sole means for obtaining collateral review, and
any petition filed after the judgment of sentence becomes final will be
treated as a PCRA petition. Commonwealth v. Johnson, 803 A.2d 1291,
3
his Motion for Correction of Sentence.
4
untimely, as his Notice of Appeal was filed beyond the 30-day appeal period
permitted by Pa.R.A.P. 903(a). However, Hunt contends that his Notice of
Appeal was mailed on December 19, 2013, one day before the 30-day
Notice of Appeal was timely filed. Brief for Appellant at 3. To avail himself
of the prisoner mailbox rule, however, an incarcerated litigant must supply
sufficient proof of the date of mailing. Thomas v. Elash, 781 A.2d 170, 176
(Pa. Super. 2001). Here, the record is devoid of any evidence to support
trial court for an evidentiary hearing on the timeliness issue. Id. In the
present case, however, no remand is necessary as we find Hunt is not
entitled to relief. Id.
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1293 (Pa. 2002). It is clear, therefor
Motion for Correction of Sentencing Order qualifies as a PCRA petition.
including a second or
subsequent petition, shall be filed within one year of the date the judgment
becom
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
Id.
jurisdictional in nature, and a court may not address the merits of the issues
raised if the PCRA petition was not timely filed. Commonwealth v.
Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
2004, when the ninety-day period of time to file an appeal with the United
States Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3); see also
Commonwealth v. Beasley, 741 A.2d 1258, 1260 (Pa. 1999). Hunt had
until December 5, 2005, to file the instant PCRA Petition (Motion for
Correction of Sentencing Order), but did not do so until November 7, 2013.
(Motion for Correction of Sentencing Order) is
facially untimely under the PCRA.
However, Pennsylvania courts may consider an untimely PCRA petition
if the appellant can explicitly plead and prove one of three exceptions set
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forth under 42 Pa.C.S.A. § 9545(b)(1). Any PCRA petition invoking one of
Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094.
Here, Hunt has failed to plead or prove the applicability of any of the
exceptions to the PCRA timeliness requirements. See 42 Pa.C.S.A.
§ 9545(b)(1); see also Albrecht, 994 A.2d at 1094. Accordingly, Hunt has
failed to overcome the untimeliness of his PCRA Petition (Motion for
Correction of Sentencing Order).5
Order affirmed.
Shogan, J., concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/20/2014
5
We note that a challenge to the calculation of time for a sentence is
addressed to the Pennsylvania Department of Corrections, and not to the
courts. See , 713 A.2d 741, 743
(Pa. Cmwlth. 1998)
Probation and Parole for administrative relief from the alleged miscalculation
of a sentence bars judicial intervention in the administrative process).
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