J-S84017-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    YUL DANIEL ROMAN-VAZQUEZ                   :
                                               :   No. 1046 MDA 2017
                       Appellant

            Appeal from the Judgment of Sentence January 25, 2017
      In the Court of Common Pleas of Lebanon County Criminal Division at
                        No(s): CP-38-CR-0001272-2016,
                            CP-38-CR-0001274-2016


BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J.

MEMORANDUM BY LAZARUS, J.:                              FILED AUGUST 01, 2018

        Yul Daniel Roman-Vazquez appeals from the judgment of sentence,

entered in the Court of Common Pleas of Lebanon County, after his conviction

of two counts of retail theft.1 After careful review, we affirm.

        The trial court summarized the facts and procedural history as follows:

        [Roman-Vazquez] was charged with two counts of [r]etail [t]heft
        stemming from two separate incidents occurring on July 13, 2016
        and July 14, 2016. [Roman-Vazquez] [pleaded] guilty to the
        aforementioned charges on December 21, 2016 and agreed to a
        sentence of 11[]1/2 months[,] with the [c]ourt to set the
        maximum duration and location.[2]      On January 25, 2017,
        [Roman-Vazquez] was sentenced before this [c]ourt to 11[]1/2
        months to 7 years in a state correctional facility. The [c]ourt
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1   18 Pa.C.S.A. § 3929.

2Roman-Vasquez agreed to this minimum sentence pursuant to a negotiated
guilty plea.
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       found that [Roman-Vazquez] was RRRI eligible, which reduced his
       minimum sentence to 8[]1/2 months.

Trial Court Opinion, 5/31/17, at 1.

       On February 6, 2017, Roman-Vazquez filed a timely motion for

reconsideration of sentence,3 which the trial court denied on May 31, 2017.

Roman-Vazquez timely appealed, and on June 3, 2017, the trial court entered

an order directing him to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b). Roman-Vazquez did not comply due to

an alleged clerical error. On August 3, 2017, the trial court issued a Rule

1925(a) opinion stating that Roman-Vazquez waived any issues he wished to

appeal for failing file a Rule 1925(b) statement. On March 22, 2018, this Court

determined Roman Vasquez’s counsel was per se ineffective for failing to file

a Rule 1925(b) statement. Accordingly, we remanded his case pursuant to

Rule 1925(c)(3) (“If an appellant in a criminal case was ordered to file a

Statement and failed to do so, such that the appellate court is convinced that

counsel has been per se ineffective, the appellate court shall remand for the

filing of a Statement nunc pro tunc and for the preparation and filing of an

opinion by the judge.”).




____________________________________________


3 Roman-Vasquez filed his post-sentence motion 12 days after the imposition
of his judgment of sentence; however, the 10th and 11th days fell on Saturday
February 4, 2017 and Sunday February 5, 2017. See 1 Pa.C.S.A. § 1908
(“Whenever the last day [to file] . . . shall fall on Saturday or Sunday . . . such
day shall be omitted from the computation.”). Therefore, Roman-Vasquez
timely filed his post-sentence motion.


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      Presently, both Roman Vasquez and the trial court have complied with

Rule 1925. On appeal, Roman-Vazquez raises the following issue for review:

“Did the [s]entencing [c]ourt commit a manifest abuse of discretion by

imposing incarceration in a state correctional facility?” Brief of Appellant, at

4.

      Instantly, Roman-Vazquez challenges the discretionary aspects of his

sentence. However, such a claim does not entitle an appellant to review as of

right. See Commonwealth v. Sierra, 752 A.2d 919, 912 (Pa. Super. 2000).

Where a defendant pleads guilty without any agreement as to a sentence, the

defendant has the right to petition the Superior Court for allowance of appeal

with respect to the discretionary aspects of sentencing. Commonwealth v.

Brown, 982 A.2d 1017, 1019 (Pa. Super. 2009).              However, where a

defendant pleads guilty pursuant to a negotiated plea agreement specifying

particular penalties, the defendant may not seek a discretionary appeal

relating to those agreed-upon penalties.      Id.   Permitting a defendant to

petition for such an appeal would undermine the integrity of the plea

negotiation process and could ultimately deprive the Commonwealth of

sentencing particulars for which it bargained. Id. “In some cases, there may

be plea agreements specifying some but not all aspects of the sentence.”

Id. (emphasis added).     In such cases, where there are specific penalties

outlined in a plea agreement, an appeal from the discretionary sentence will

not stand. Commonwealth v. Dalberto, 648 A.2d 16, 21 (Pa. Super. 1994).

However, where there have been no sentencing restrictions in a plea

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agreement, an entry of a guilty plea will not preclude a challenge to the

discretionary aspects of sentencing. Id.

      Here, Roman-Vasquez agreed to a minimum sentence of 11½ months’

imprisonment pursuant to a negotiated guilty plea. However, Roman-Vasquez

and the Commonwealth did not negotiate the parameters of his maximum

sentence and the location of confinement. Therefore, the trial court retained

discretion to determine some discretionary aspects of Roman-Vasquez’s

sentence. Thus, “it becomes clear that [Roman-Vasquez’s] plea agreement

falls somewhere between a negotiated plea and an open plea; our task is to

determine the effect of this hybrid plea agreement on the right to challenge

the discretionary aspects of his sentence.” Dalberto, 648 A.2d at 21.

      Instantly, we believe that justice requires that we treat this case as an

“open” plea and permit an appeal to the discretionary aspects of sentencing.

“We wish to make clear, however, that we will allow an appeal only as to those

discretionary aspects of sentencing which have not been agreed upon during

the negotiation process,” id., i.e., the maximum sentence and the location of

confinement. Accordingly, we proceed with our review of Roman-Vasquez’s

discretionary aspects of sentence claim.

      Our standard of review regarding challenges to the discretionary aspects

of sentence is well settled:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment. Rather,
      the appellant must establish, by reference to the record, that the

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        sentencing court ignored or misapplied the law, exercised its
        judgment for reasons of partiality, prejudice, bias or ill will, or
        arrived at a manifestly unreasonable decision.

Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015) (citation

omitted).

        To determine if this Court may review the discretionary aspects of a

sentence, we employ a four-part test:

        (1) [W]hether appellant has filed a timely notice of appeal; (2)
        whether the issue was properly preserved at sentencing or in a
        motion to reconsider and modify [the] sentence; (3) whether
        appellant’s brief has a fatal defect; and (4) whether there is a
        substantial question that the sentence appealed from is not
        appropriate under the Sentencing Code.

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (internal

citations omitted).

        With regard to the fourth prong, an appellant raises a substantial

question if he can show “actions by the trial court inconsistent with the

Sentencing Code[4] or contrary to the fundamental norms underlying the

sentencing process.” Commonwealth v. Bowen, 55 A.3d 1254, 1262-63

(Pa. Super. 2012) (citation omitted).            “The determination of whether a

particular issue raises a substantial question is to be evaluated on a case-by-

case basis.”    Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.

2004). A substantial question exists “only when the appellant advances a

colorable argument that the sentencing judge’s actions were either:           (1)

inconsistent with a specific provision of the sentencing code; or (2) contrary
____________________________________________



4   42 Pa.C.S.A. §§ 9701 – 9799.75.

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to   the   fundamental      norms     which    underlie   the   sentencing   process.”

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013).

       Here, Roman-Vazquez timely filed his appeal within 30 days of the trial

court’s order, as required by Pa.R.A.P. 903(a). Roman-Vazquez also properly

preserved his issue in a consolidated post-sentence motion. Furthermore, in

Roman-Vazquez’s appellate brief, he properly set forth a concise statement of

the reasons relied upon for allowance of appeal, pursuant to Pa.R.A.P. 2119(f).

Roman-Vasquez has complied with the necessary procedural dictates, and,

thus, we turn to whether Roman-Vazquez has raised a substantial question

that his sentence was inappropriate under the Sentencing Code.

       Roman-Vazquez first asserts that the sentencing court abused its

discretion by making inappropriate statements referencing his prior criminal

record,5 which demonstrated prejudice and gave rise to a manifestly

unreasonable sentence in a state correctional facility. Generally, the factors

trial courts consider when determining a defendant’s sentence are, “the

protection of the public, the gravity of the offense as it relates to the impact

on the life of the victim and on the community, and the rehabilitative needs

of the defendant.” 42 Pa.C.S.A. § 9721(b). Furthermore, when the sentence

imposed falls within the statutory limits, as it does in this case, an appellant’s
____________________________________________


5 The sentencing court observed that Roman-Vazquez repeatedly committed
retail theft in three different counties, with two of the crimes occurring within
mere days of each other. The court remarked, “You have to ask yourself, this
isn’t working. We tried probation. We tried a summary offense. We tried
confinement in the prison. None of that convinces him that he shouldn’t
steal.” N.T. Sentencing, 3/26/17, at 3.

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claim that a sentence is manifestly excessive fails to raise a substantial

question. Commonwealth v. Bershad, 693 A.2d 1303, 1309 (Pa. Super.

1997).    Therefore, this claim fails to raise a substantial question that his

sentence is inappropriate under the Sentencing Code.

       Roman-Vazquez next avers that the trial court abused its discretion in

sentencing him to a period of incarceration in a state correctional facility.

However, 42 Pa.C.S.A. § 9762(b)(1) limits the trial court’s traditional

sentencing authority. See Commonwealth v. Foster, 960 A.2d 160, 166

(Pa.   Super.    2008).       Specifically,    section   9762(b)(1)   mandates   that

“[m]aximum terms of five or more years shall be committed to the

Department of Corrections [(“DOC”)] for confinement.”                 42 Pa.C.S.A. §

9762(b)(1).      Therefore, Roman-Vazquez’s claim actually implicates the

legality of his sentence.          See id. (“[L]egality of sentence issues occur

generally . . . when a trial court’s traditional authority to use discretion in the

act of sentencing is somehow affected.”).6
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6 We recognize that the trial court’s imposition of a maximum sentence of 7
years’ confinement raises the specter of a causality dilemma. The trial court,
by imposing such a sentence, forfeited its discretion to choose the location of
confinement. Cf. Commonwealth v. Townsend, 693 A.2d 980, 982 (Pa.
Super. 1997) (court lacked jurisdiction to order that defendant serve sentence
of 18 months to five years at county jail, as defendant sentenced to maximum
term of five years or more must serve sentence in state institution, and
sentencing judge has no discretion to direct that sentence be served in county
facility). Had the trial court favored committing Roman-Vasquez to the DOC,
it could have retained discretion to do so by sentencing him to a maximum
term of imprison greater than two and less than five years. See 42 Pa.C.S.A.
9762(b)(1). Under the instant circumstances, such a sentence is cognizable.



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       The relevant standard of review for legality of sentence challenges “is

de novo and our scope of review is plenary.” Commonwealth v. Akbar, 91

A.3d 227, 238 (Pa. Super. 2014).                 “[A] challenge to the legality of

the sentence      can   never     be    waived   and   may   be   raised   by   this

Court sua sponte.”       Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa.

Super. 2014).

       Under section 9762(b)(1), individuals who receive a maximum sentence

of five years or more must be committed to the custody of the DOC. Roman-

Vazquez’s crimes were his third and fourth retail theft offenses, making such

offenses felonies of the third degree. 18 Pa.C.S. § 3929(b)(1)(iv). Because

Roman-Vasquez pleaded guilty to a third-degree felony, his maximum

sentence is seven years.         18 Pa.C.S. § 1103(3).    The trial court, lawfully

exercising its discretion, imposed the maximum sentence. Pursuant to the

clear language of section 9762(b)(1), the trial court was constrained to

commit Roman-Vazquez to any authority but the DOC.                 42 Pa.C.S.A. §

9762(b)(1). In light of the foregoing, we find no error.

       Judgment of sentence affirmed.

____________________________________________




However, there is no precedent suggesting that a trial court’s voluntary
forfeiture of sentencing discretion is, in fact, an exercise (or abuse) of
discretion. Moreover, Roman-Vasquez has failed to raise a substantial
question regarding the imposition of a seven-year maximum sentence and his
sentence falls within the standard range. Therefore, although there is a causal
relationship between trial court’s initial exercise of discretion and its
subsequent application of section 9762(b)(1), we decline to review this issue
as one implicating the discretionary aspects of the sentence.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 08/01/2018




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