J-S22030-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ALEXANDER ASENOV VITTONE                   :
                                               :
                       Appellant               :   No. 726 MDA 2019

       Appeal from the Judgment of Sentence Entered February 27, 2019
    In the Court of Common Pleas of York County Criminal Division at No(s):
                          CP-67-CR-0000038-2018


BEFORE:      OLSON, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.:                      FILED: JUNE 8, 2020

        Alexander Asenov Vittone (Appellant) appeals from the judgment of

sentence imposed after he pled guilty to one count of driving under the

influence (DUI) and two counts of aggravated assault by vehicle while DUI.1

Upon review, we remand with instructions.

        On August 20, 2017, while driving on Yocumtown Road in York County,

Appellant crossed into the opposite lane, causing a head-on collision and

seriously injuring the occupants of the other vehicle. Affidavit of Probable

Cause, 12/1/17. It was later determined that at the time of the collision,

Appellant had a blood alcohol content (BAC) of 0.152%. Id.




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   75 Pa.C.S.A. §§ 3802(b) and 3735.1(a).
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      On August 3, 2018, Appellant pled guilty to the above crimes.             On

February 27, 2019, the trial court sentenced Appellant to an aggregate 18 to

36 months of incarceration. Appellant filed a timely post-sentence motion,

which the trial court denied on April 3, 2019. This appeal followed. Both

Appellant and the trial court have complied with Pennsylvania Rule of

Appellate Procedure 1925.

      Appellant presents a single issue for review:

      Did the sentencing court properly consider the criteria stated in
      Section 9725 when it sentenced [A]ppellant to total confinement
      for not less than 18 months, nor more than 36 months[?]

Appellant’s Brief at 4.

      Appellant challenges the discretionary aspects of his sentence.          “The

right to appellate review of the discretionary aspects of a sentence is not

absolute, and must be considered a petition for permission to appeal.”

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014).

“An appellant must satisfy a four-part test to invoke this Court’s jurisdiction

when challenging the discretionary aspects of a sentence.” Id. We conduct

this four-part test to determine whether:

      (1) the appellant preserved the issue either by raising it at the
      time of sentencing or in a post[-]sentence motion; (2) the
      appellant filed a timely notice of appeal; (3) the appellant set forth
      a concise statement of reasons relied upon for the allowance of
      appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises
      a substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted).


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      The briefing requirement for the allowance of appeal is set forth in

Pa.R.A.P. 2119(f) as follows:

      An appellant who challenges the discretionary aspects of a
      sentence in a criminal matter shall set forth in his brief a concise
      statement of the reasons relied upon for allowance of appeal with
      respect to the discretionary aspects of a sentence. The statement
      shall immediately precede the argument on the merits with
      respect to the discretionary aspects of sentence.

Pa.R.A.P. 2119(f).

      Rule 2119(f) requires that the concise statement contain a “plausible

argument.” Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super.

2000).   The concise statement must specify “where the sentence falls in

relation to the sentencing guidelines and what particular provision of the code

it violates.” Id. Additionally, the statement must specify “what fundamental

norm the sentence violates and the manner in which it violates that norm.”

Id. If the statement meets these requirements, this Court can decide whether

a substantial questions exits. Id.

      In Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987), the

Pennsylvania Supreme Court held that inclusion of a Rule 2119(f) statement

is a procedural requirement. This Court subsequently explained:

      when the appellant has not included a Rule 2119(f) statement and
      the appellee has not objected, this Court may ignore the omission
      and determine if there is a substantial question that the sentence
      imposed was not appropriate, or enforce the requirements of
      Pa.R.A.P. 2119(f) sua sponte, i.e., deny allowance of appeal.
      However, this option is lost if the appellee objects to a 2119(f)
      omission. In such circumstances, this Court is precluded from
      reviewing the merits of the claim and the appeal must be denied.


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Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 2004) (citations

omitted).

      Here, Appellant failed to include a Rule 2119(f) statement in his brief,

and   the    Commonwealth      has   objected.      Appellant’s    Brief   at    1-9;

Commonwealth Brief at 13. Thus, we may not review Appellant’s sentencing

claim.   Moreover, because Appellant has waived his only claim, we are

constrained, pursuant to Commonwealth v. Rosado, 150 A.3d 425 (Pa.

2016), to find that Appellant’s counsel was per se ineffective for failing to

include a Rule 2119(f) statement in Appellant’s brief.        Our Supreme Court

explained:

            The Sixth Amendment to the United States Constitution
      provides that “in all criminal prosecutions, the accused shall enjoy
      the right . . . to have the Assistance of Counsel for his defence.”
      U.S. Const. amend. VI. The right to counsel is not a mere hollow
      formality satisfied by trial alongside a person who happens to be
      a lawyer, but, instead, is the right to the effective assistance of
      counsel.

             Generally, an accused asserting that he has been denied his
      constitutional right to effective assistance of counsel must
      demonstrate that counsel engaged in errors which caused him
      prejudice—i.e., that there is a reasonable probability that, but for
      counsel’s errors, the result of the proceeding would have been
      different . . . However, in certain limited circumstances, including
      the actual or constructive denial of counsel, prejudice may be so
      plain that the cost of litigating the issue of prejudice is unjustified,
      and a finding of ineffective assistance of counsel per se is
      warranted.

                                *     *      *

           [T]his Court has . . . held that errors which completely
      foreclose appellate review amount to a constructive denial
      of counsel and thus ineffective assistance of counsel per

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       se, whereas those which only partially foreclose such review are
       subject to the ordinary [Strickland v. Washington, 104 S. Ct.
       2052 (U.S. 1984)]/[Commonwealth v. Pierce, 527 A.2d 973
       (Pa. 1987)] framework.

Rosado, 150 A.3d at 431-32, 438-39 (some citations and footnotes omitted,

emphasis added).

       In sum, counsel’s failure to include a Rule 2119(f) statement in

Appellant’s brief has resulted in waiver, and therefore, “counsel has forfeited

all meaningful appellate review.” Id. at 440; see also Commonwealth v.

Parrish, 224 A.3d 682, 695 (Pa. 2020) (counsel’s failure to file a petition for

allowance of appeal requested by defendant causing loss of the right to seek

discretionary review is per se ineffective assistance of counsel).        Thus,

Appellant has been denied the assistance of counsel.2 Because counsel was

per se ineffective, we are constrained to remand this case to the trial court to

afford Appellant the opportunity to perfect his appeal. Upon remand, the trial

court shall, within 30 days of this decision, determine whether Appellant

wishes to proceed with private counsel, or if Appellant can no longer afford

private counsel, request that the trial court appoint counsel, or proceed pro

se.3 The trial court shall communicate the outcome of its determination to the



____________________________________________


2  See Commonwealth v. Gardner, 389 A.2d 58, 59 (Pa. 1978) (“The
accused enjoys the same right to effective representation whether his counsel
is appointed or privately retained.”) (citations omitted).

3 In the event Appellant would want to procced pro se, the court would need
to conduct a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81
(Pa. 1998).

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Superior Court Prothonotary within the 30 day period, and thereafter, the

Superior Court Prothonotary shall issue a new briefing schedule.

     Case remanded with instructions. Jurisdiction retained.

     Judge Colins joins the memorandum.

     Judge Olson files a dissenting memorandum.




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