Com. v. Gomez, R.

• Court: Superior Court of Pennsylvania
• Decided: August 8, 2017
• Docket: Com. v. Gomez, R. No. 2777 EDA 2016
• Status: Unpublished

Opinion

J-S47006-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

RAJAB S. GOMEZ

Appellant No. 2777 EDA 2016

Appeal from the PCRA Order August 4, 2016 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0002812-2015

BEFORE: LAZARUS, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

JUDGMENT ORDER BY LAZARUS, J.: Filed: August 8, 2017

Rajab S. Gomez appeals pro se from the trial court’s order denying his

pro se petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546. After careful review, we affirm.

On February 5, 2016, Gomez entered a negotiated guilty plea to

robbery,1 simple assault,2 and receiving stolen property.3 He was sentenced

to an agreed-upon aggregate sentence of 2-4 years’ imprisonment, followed

by a consecutive term of two years of probation. The court deemed Gomez

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1 18 Pa.C.S. § 3701(a)(1)(v). 2 18 Pa.C.S. § 2701(a)(1). 3 18 Pa.C.S. § 3925(a). J-S47006-17

eligible under the Recidivism Risk Reduction Incentive (RRRI) Act, 61 Pa.C.S.

§§ 4501-4512.

Gomez filed a pro se motion, which the court treated as a PCRA

petition, on May 16, 2016. The court gave Gomez notice of its intent to

dismiss his petition, pursuant to Pa.R.Crim.P. 907,4 on July 14, 2016.5 On

July 22, 2016, Gomez filed his second pro se PCRA petition; the court denied

this petition, noting that his first petition was still pending. See

Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000) (when appellant's PCRA

appeal is pending before a court, subsequent PCRA petition cannot be filed

until resolution of review of pending PCRA petition by highest state court in

which review is sought, or upon expiration of time for seeking such review).

On August 4, 2016, the trial court denied Gomez’s first petition.

August 24, 2016, Gomez filed a timely notice of appeal. On August 30,

2016, the trial court ordered Gomez to file a Pa.R.A.P. 1925(b) concise

statement of matters complained of on appeal within 21 days, or by

September 20, 2016. Gomez failed to comply with this order and did not file

a Rule 1925(b) statement. ____________________________________________

4 The court also permitted court-appointed counsel to withdraw, pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). 5 On this same date, Gomez filed a pro se motion to withdraw his guilty plea. The court dismissed the motion as untimely. See Pa.R.Crim.P. 720 (motion to withdraw guilty plea must be filed within 10 days of sentence).

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In its Rule 1925(a) opinion, the trial court recognizes Gomez’s failure

to file a Rule 1925(b) statement and deems all issues waived on appeal.

See Trial Court Opinion, 9/28/16, at 2; see also Pa.R.A.P. 1925(b); but

see Commonwealth v. Sohnleitner, (Pa. Super. 2005) (where trial court

accepts untimely Rule 1925(b) statement and addresses issues raised in its

Rule 1925(a) opinion, appellate court will not deem issues waived). Because

the failure to file a court-ordered Rule 1925(b) statement traditionally

results in the waiver of all issues on appeal and because the trial court has

not addressed Gomez’s issues on appeal, we find Gomez’s issues waived.

See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (if appellant is

directed to file Rule 1925(b) statement, any issues not raised in statement

are waived).

Order affirmed.6

6 Although the trial court submits that this appeal should be quashed, the proper procedure is to affirm the underlying order denying PCRA relief. An appeal is quashed when our court does not have jurisdiction over the matter. Here, Gomez’s appeal is properly before our Court, however he has waived review of any issues for failure to comply with the trial court’s Rule 1925(b) order.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/8/2017

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