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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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