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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


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