J-S13032-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA, : PENNSYLVANIA
:
Appellee :
:
v. :
:
JUSTIN RAY MILLER, :
:
Appellant : No. 1220 WDA 2018
Appeal from the Order Entered August 7, 2018
in the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0000619-2012
BEFORE: BENDER, P.J.E., OTT, J. and STRASSBURGER, J.*
JUDGMENT ORDER BY STRASSBURGER, J.: FILED APRIL 26, 2019
Justin Ray Miller (Appellant) pro se appeals from the August 7, 2018
order, which notified Appellant the court intended to dismiss his petition filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.
Because the notice appealed from was not a final order, we quash the appeal.
We glean the following facts from the record. In 2012, Appellant was
charged with one count each of possession with intent to deliver a controlled
substance; possession of a controlled substance; and use or possession of
drug paraphernalia. On February 4, 2013, Appellant entered a negotiated
guilty plea to the aforementioned charges. On March 25, 2013, Appellant was
sentenced to three to six years of incarceration on the possession with intent
to deliver conviction. No further penalty was imposed on the remaining
counts. Appellant did not file a post-sentence motion or direct appeal.
* Retired Senior Judge assigned to the Superior Court.
J-S13032-19
Appellant filed two PCRA petitions, both of which resulted in dismissal by the
PCRA court and were not appealed.
On June 6, 2018, Appellant filed pro se the instant PCRA petition, his
third. On August 7, 2018, the PCRA court issued notice of its intent to dismiss
Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907. Appellant
responded on August 10, 2018, by filing a request for copies of his prior two
PCRA petitions, but he did not otherwise address the PCRA court’s notice of
intent to dismiss. On August 22, 2018, Appellant filed the instant appeal.
As an initial matter, we must consider whether we have jurisdiction. The
PCRA court has not entered a final order dismissing Appellant’s third PCRA
petition.1 As noted supra, Appellant filed pro se a notice of appeal from the
PCRA court’s notice of intent to dismiss. Generally, an appeal may be taken
only from a final order of court. See Pa.R.A.P. 341 (relating to final orders).
Because the notice appealed from is not a final order, Appellant’s appeal is
premature. See id.; Pa.R.Crim.P. 910 (“An order granting, denying,
dismissing, or otherwise finally disposing of a petition for post-conviction
____________________________________________
1 The PCRA court appears to be aware of this, as it indicated in its statement
in lieu of opinion pursuant to Pa.R.A.P. 1925 that the August 7, 2018 order
was not “a final disposition subject to appeal.” Statement in Lieu of Opinion,
10/25/2018 at 1 (unnumbered). This Court may address a premature appeal
when the subsequent actions of the PCRA court fully ripen it. See Pa.R.A.P.
905 (“A notice of appeal filed after the announcement of a determination but
before the entry of an appealable order shall be treated as filed after such
entry and on the day thereof.”). Here, the PCRA court took no further action
in this case, leaving the PCRA matter still pending.
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J-S13032-19
collateral relief shall constitute a final order for purposes of appeal) (emphasis
added). Accordingly, we quash the appeal.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/26/2019
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