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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  :   IN THE SUPERIOR COURT OF
                                                  :        PENNSYLVANIA
                                                  :
                v.                                :
                                                  :
                                                  :
    ALEXIS NUNEZ,                                 :
                                                  :
                       Appellant                  :   No. 477 EDA 2019

      Appeal from the Judgment of Sentence Entered December 18, 2018
      In the Court of Common Pleas of Lehigh County Criminal Division at
                       No(s): CP-39-CR-0003688-2018


BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.

MEMORANDUM BY MURRAY, J.:                               FILED FEBRUARY 06, 2020

        Alexis Nunez (Appellant) appeals pro se from the judgment of sentence

imposed after he entered a negotiated guilty plea to possession of firearm

prohibited and driving under the influence of alcohol.1

        Appellant entered his negotiated plea on December 18, 2018.               That

same day, the trial court sentenced him to an aggregate 5 to 10 years in

prison. Appellant filed a timely post-sentence motion asking the trial court to

reconsider the sentence.           On January 3, 2019, the trial court denied

Appellant’s post-sentence motion.              Appellant filed a timely appeal.    On

February 4, 2019, the trial court ordered Appellant to file a concise statement

of matters complained of on appeal pursuant to Pennsylvania Rule of Appellate

Procedure 1925(b). Appellant filed a pro se 1925(b) statement challenging

____________________________________________


1   18 Pa.C.S.A. § 6105 and 75 Pa.C.S.A. § 3802(c).
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the discretionary aspects of his sentence on February 21, 2019. That same

day, the assistant public defender filed a petition to extend time for the filing

of a counseled 1925(b) statement on Appellant’s behalf.          The trial court

granted the petition on February 22, 2019, and on March 13, 2019, the

assistant public defender filed a 1925(b) statement which likewise claimed

that Appellant’s sentence was “excessive and harsh.”

       Instead of issuing an opinion, the trial court entered an order

transmitting the record to this Court. The order states that “the sole error

alleged in Appellant’s Concise Statement of Matters Complained of on Appeal

contends that the Court abused its discretion.” Order, 3/18/19. The order

further states that “Appellant entered into a negotiated plea for a minimum

sentence not to exceed the bottom of the standard range,” and “sentencing is

a matter vested in the sound discretion of the sentencing judge.” Id. The

order also states that Appellant did not request the notes of testimony. Id.

       After the record was transmitted, Appellant filed with this Court an

application for relief seeking to proceed pro se.      On April 29, 2019, we

remanded the matter to the trial court for a Grazier hearing.2 On May 31,

2019, the trial court held a Grazier hearing, after which it entered an order

finding that Appellant “intelligently, knowingly and voluntarily gives up his

right to appellate counsel.” Order, 5/31/19. The order also specified that




____________________________________________


2   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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Appellant “shall request any information from the Public Defender’s file within

21 days from today’s date.” Id. Appellant has since proceeded pro se.

      In his brief, Appellant presents three plea-related issues for our review:

      1. May the Appellant’s guilty plea stand if such guilty plea was
         given under false pretenses, that is to say, if such guilty plea
         was given involuntarily, unknowingly and/or unintelligently?

      2. May the Appellant’s guilty plea stand if such guilty plea was
         based upon misinformation that the Appellant received from
         his legal counsel?

      3. May the Appellant’s guilty plea stand if such guilty plea was
         based upon a negotiated plea deal that the sentencing judge
         deviated from?

Appellant’s Brief at 4.

      Upon review, we agree with the Commonwealth that Appellant’s claims

are waived because they were not preserved in a concise statement. Pa.R.A.P.

1925(b)(4)(vii) (issues not included in the concise statement are waived). We

further agree that even if Appellant had raised his plea-related issues as

provided in Pa.R.A.P. 1925(b), our review would be impeded because

Appellant has failed to include the relevant notes of testimony from December

18, 2018 in the record. We have explained:

            With regard to missing transcripts, the Rules of Appellate
      Procedure require an appellant to order and pay for any transcript
      necessary to permit resolution of the issues raised on appeal.
      Pa.R.A.P.1911(a). . . . When the appellant or cross-appellant fails
      to conform to the requirements of Rule 1911, any claims that
      cannot be resolved in the absence of the necessary transcript or
      transcripts must be deemed waived for the purpose of appellate
      review. It is not proper for either the Pennsylvania Supreme Court
      or the Superior Court to order transcripts nor is it the responsibility
      of the appellate courts to obtain the necessary transcripts.

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Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (citations

omitted).

      At the Grazier hearing, the court advised:

      THE COURT:             Okay. So I would ask [Appellant] to check
      back and see if you have a transcript of the guilty plea and
      sentencing. If you don’t have it –

      [APPELLANT]:            Okay.

      THE COURT:              -- let me know.

      [PUBLIC DEFENDER]:      Your Honor, can we put like 21 days to
      notify us –

      THE COURT:              Okay.

      [PUBLIC DEFENDER]:      -- just so that we have some time frame
      here?

      THE COURT:              Okay. So given everything that you’ve
      said to me, [Appellant], you have no questions for me?

      [APPELLANT]:            No, ma’am.

N.T., 5/31/19, at 9.

      There is no indication in the record that Appellant took action to obtain

the December 18, 2018 plea and sentencing transcript, or whether it was even

transcribed. In his reply brief, Appellant argues against waiver and states, “if

this Court deems the absence of the Appellant’s sentencing transcripts to be

detrimental to the full appellate review of this case, Appellant wishes to take

this time to supplement the reproduced record to add the aforementioned

sentencing hearing transcripts pursuant to Pa.R.A.P. 2156.” Reply Brief for

Appellant at 1. However, Rule 2156 pertains to the reproduced record, not

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the certified record.   We have stated, “Our law is unequivocal that the

responsibility rests upon the appellant to ensure that the record certified on

appeal is complete in the sense that it contains all of the materials necessary

for the reviewing court to perform its duty.” Preston, 904 A.2d at 7. Further,

even if Appellant had asked to correct the certified record and had cited the

correct rule, Rule 1926, he waived the request by waiting approximately seven

months after the trial judge put him on notice that the notes of the sentencing

hearing had not been transcribed to make the request.

      We also note that, even if preserved, Appellant’s second claim assailing

plea counsel’s representation is not reviewable on direct appeal.           See

Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013) (claims of

ineffective assistance of counsel are to be deferred to PCRA review).

      Finally, we recognize that although Appellant has chosen to proceed pro

se:

      . . . pro se status confers no special benefit upon [A]ppellant. To
      the contrary, any person choosing to represent himself in a legal
      proceeding must, to a reasonable extent, assume that his lack of
      expertise and legal training will be his undoing

Commonwealth v. Adams, 882 A.2d 496, 498 (Pa. Super. 2005) (citations

omitted).

      In sum, and for the above reasons, we find waiver and affirm the

judgement of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/6/20




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