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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
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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4/17/17) (unpublished memorandum) (citations to record omitted) (footnote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
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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.
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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
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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.
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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.
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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.
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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
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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.
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