J-S84017-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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

            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 MARCH 22, 2018

        Yul Daniel Roman-Vazquez (“Roman-Vazquez”) appeals from the

judgment of sentence, entered in the Court of Common Pleas of Lebanon

County, alleging that after he pleaded guilty to two counts of retail theft,1

the sentencing court abused its discretion by imposing incarceration in a

state correctional facility. We remand for further proceedings.

        On January 25, 2017, Roman-Vazquez was sentenced to a period of 11

½ months’ to 7 years’ incarceration in a state facility, rather than in a county

facility.2   Roman-Vazquez was made Recidivism Risk Reduction Incentive

eligible, reducing his minimum sentence to 8 ½ months.           On February 6,
____________________________________________


1   18 Pa.C.S.A. § 3929(A)(1).
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2017, Roman-Vazquez filed a timely motion for reconsideration of sentence,

which was 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

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b);

he 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 to respond with a Rule 1925(b)

statement. Roman-Vazquez raises one issue for review: “Did the sentencing

court commit a manifest abuse of discretion by imposing incarceration in a

state correctional facility?” Brief of Appellant, at 4.

      Before we address the merits of Roman-Vazquez’s issue, we must first

determine whether Roman-Vazquez has preserved his claim for our review.

In Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998), our Supreme

Court held that in order to preserve issues for appellate review, appellants

must comply whenever the court orders them to file a Rule 1925(b)

statement.   However, in 2007, our Supreme Court amended Rule 1925 to

include a new procedure for appellate courts to remedy a criminal appellant’s

failure to file a Rule 1925(b) statement. Rule 1925(c)(3) now provides:

      (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.

Pa.R.A.P. 1925(c)(3). The official note to subsection (c)(3) further states:


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      Paragraph (c)(3) This paragraph allows an appellate court to
      remand in criminal cases only when the appellant has completely
      failed to respond to an order to file a Statement[.] Prior to these
      amendments of this rule, the appeal was quashed if no timely
      statement was filed or served; however, because the failure to
      file and serve a timely Statement is a failure to perfect the
      appeal,     it  is   presumptively      prejudicial  and     “clear”
      ineffectiveness[.] An appellant must be able to identify per se
      ineffectiveness to secure a remand under this section, and any
      appellant who is able to demonstrate per se ineffectiveness is
      entitled to a remand.

Note to Pa.R.A.P. 1925.

      Here, the trial court entered an order pursuant to Rule 1925(b),

directing Roman-Vazquez to file a statement of errors complained of on

appeal. Roman-Vazquez did not comply with the order, and the court stated

in its Rule 1925(a) opinion that Roman-Vazquez waived all issues on appeal.

Therefore, his counsel was per se ineffective for completely failing to file the

statement.    See Commonwealth v. Scott, 952 A.2d 1190 (Pa. Super.

2008) (appellant’s counsel completely failed to file Rule 1925(b) statement,

counsel was per se ineffective, case remanded pursuant to Rule 1925(c)(3)

for filing of Rule 1925(b) statement nunc pro tunc and for filing of Rule

1925(a) opinion by trial court).




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       Accordingly, we remand for Roman-Vazquez to file a Rule 1925(b)

statement within twenty-one days of this decision, and for the trial court to

file a Rule 1925(a) opinion within thirty days of the statement’s filing.3

       Case remanded for further proceedings consistent with this decision.

Jurisdiction retained.




____________________________________________


3 Roman-Vazquez’s sentence implicates section 9762 of the Pennsylvania
Code, which states, in relevant part, as follows: “Maximum terms of five or
more years shall be committed to the [Pennsylvania] Department of
Corrections for confinement.”      42 Pa.C.S.A. § 9762(b)(1).        See also
Allegheny County v. Commonwealth, 544 A.2d 1305, 1307-08 (Pa.
1988) (persons receiving maximum sentence of five years or more are
committed to custody of the Department of Corrections). Furthermore, a
convicted individual has no constitutional or other inherent right to serve his
imprisonment in any particular type of institution. See Commonwealth v.
Fullin, 892 A.2d 843, 852 (Pa. Super. 2006). Accordingly, upon remand,
the trial court may not grant Gonzalez relief as to the instant claim if his
maximum sentence remains five or more years.



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