Com. v. Roman-Vazquez, Y. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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