J-S82037-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                               : IN THE SUPERIOR COURT OF
    PENNSYLVANIA,                                 :        PENNSYLVANIA
                                                  :
                       Appellee                   :
                v.                                :
                                                  :
                                                  :
    FRANKLIN CUTTINO,                             :
                                                  :
                       Appellant                  : No. 67 EDA 2018

          Appeal from the Judgment of Sentence December 28, 2017
             in the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0003815-2017

BEFORE:      LAZARUS, J., OLSON, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                             FILED MARCH 12, 2019

       Franklin Cuttino (Appellant) appeals from the judgment of sentence of

four to ten years of incarceration, followed by four years of probation, imposed

after he pleaded guilty to burglary, conspiracy, and theft by unlawful taking.

We affirm.

       On February 25, 2017, at about 3:00 p.m., Appellant and a co-

conspirator entered the victim’s garage without permission and stole two

bicycles valued at nearly $1,000.1             The victim’s video surveillance system




____________________________________________


1Because Appellant has failed to include the notes of testimony as part of the
certified record, we glean the facts from the police arrest report and criminal
complaint.


____________________________________
*Retired Senior Judge assigned to the Superior Court.
J-S82037-18


recorded Appellant committing the crime.         Appellant was apprehended the

following day.

        On October 5, 2017, Appellant entered an open guilty plea to the

aforementioned crimes.2 On December 28, 2017, Appellant was sentenced to

concurrent terms of four to ten years of incarceration on the burglary and

conspiracy convictions, followed by four years of probation on the theft by

unlawful taking conviction. Appellant did not file post-sentence motions, but

did file a timely notice of appeal. Appellant complied with Pa.R.A.P. 1925(b).

On February 20, 2018, the trial court informed this Court that it would not be

filing an opinion pursuant to Rule 1925(a) because the plea and sentencing

judge is no longer serving as a judge in the trial court.

        On appeal, Appellant raises one claim for our review. He contends that

his sentence was “arbitrary, excessive, unreasonable, shocking to the

conscience, and disproportionate to the crimes, in that it violated a

fundamental norm of an open plea of guilty and an abuse of discretion.”

Appellant’s Brief at 3 (unnecessary capitalization and internal quotation marks

omitted).      Because this claim implicates the discretionary aspects of

Appellant’s sentence, we must first determine whether Appellant has invoked

this Court’s jurisdiction to review the merits of this claim.

        An appellant is not entitled to the review of challenges to the
        discretionary aspects of a sentence as of right. Rather, an
        appellant challenging the discretionary aspects of his sentence
____________________________________________


2   A remaining charge of receiving stolen property was nolle prossed.

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      must invoke this Court’s jurisdiction. We determine whether the
      appellant has invoked our jurisdiction by considering the following
      four factors:

            (1) whether appellant has filed a timely notice of
            appeal, see Pa.R.A.P. 902 and 903; (2) whether the
            issue was properly preserved at sentencing or in a
            motion to reconsider and modify sentence, see
            Pa.R.Crim.P. 720; (3) whether appellant’s brief has a
            fatal defect, Pa.R.A.P. 2119(f); and (4) whether there
            is a substantial question that the sentence appealed
            from is not appropriate under the Sentencing Code,
            42 Pa.C.S.[] § 9781(b).

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)

(some citations omitted).

      Here, Appellant timely filed a notice of appeal. However, our review of

the record reveals that Appellant did not file a post-sentence motion. See

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

to the discretionary aspects of a sentence are generally waived if they are not

raised at the sentencing hearing or in a motion to modify the sentence

imposed.”). Further, this Court’s review has been substantially impeded by

Appellant’s failure to request and file a transcript of his guilty plea and

sentencing hearings in compliance with Pa.R.A.P. 1911(a) (“The appellant

shall request any transcript required under this chapter in the manner and

make any necessary payment or deposit therefor….”).

      [W]ell-settled Pennsylvania law makes clear an appellate court is
      limited to considering only the materials in the certified record
      when resolving an issue. Where the appellant has not made the
      transcript of the proceedings at issue a part of the certified record,
      we have said:



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            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 … 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.

Commonwealth v. Houck, 102 A.3d 443, 456 (Pa. Super. 2014) (some

internal citations omitted). There is no indication that Appellant requested the

transcripts or that they are available. Without the transcripts, we are unable

to determine whether Appellant preserved the issue at sentencing.          See

Griffin, 65 A.3d at 935. Accordingly, Appellant has waived this issue for our

review, and he is not entitled to relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/12/19




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