J-S41002-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

WILLIAM ASH,

                            Appellant                     No. 54 MDA 2017


          Appeal from the Judgment of Sentence December 19, 2016
              in the Court of Common Pleas of Lebanon County
              Criminal Division at No.: CP-38-CR-0001794-2014


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                            FILED NOVEMBER 14, 2017

        Appellant, William Ash, appeals from the judgment of sentence

entered on December 19, 2016. For the reasons discussed below, we affirm.

        On August 18, 2015, Appellant entered a guilty plea 1 to retail theft and

conspiracy to commit retail theft.         For reasons that are not apparent, the

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*   Retired Senior Judge assigned to the Superior Court.

1  The parties dispute whether it was a negotiated or open guilty plea.
Appellant contends it was a negotiated plea agreement of time served with
the sentencing court to set the maximum and the sentence to be made
concurrent to other sentences being served by him. (See Appellant’s Brief,
at 7). The Commonwealth claims that it was an open guilty plea with the
only agreement being that the applicable sentencing ranges were not less
than one nor more than nine months of incarceration.                     (See
Commonwealth’s Brief, at 3; Commonwealth’s Motion for Briefing Schedule
and Evidentiary Hearing, 4/01/16, at unnumbered page 1). As discussed,
infra, this Court has been unable to obtain the guilty plea-hearing transcript.
(Footnote Continued Next Page)
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trial court did not sentence Appellant immediately and the court reassigned

the case to a different judge for sentencing.

      A sentencing hearing took place on December 4, 2015.         There is no

transcript for that hearing.       However, in its August 9, 2016 opinion, the

sentencing court describes the events as follows:

            After [Appellant’s] case was presented to the Court of
      Common Pleas, he entered a plea of guilty. According to his
      plea agreement [Appellant] was to be sentenced to [a] period of
      incarceration concurrent with other sentences he was serving in
      the state correctional system. [Appellant’s] case was presented
      to the [c]ourt for sentencing on December 4, 2015.

            Given [Appellant’s] demeanor and his extensive prior
      criminal history, this [c]ourt was not in favor of imposing a
      sentence that called for completely concurrent time. Essentially,
      we did not wish to provide [Appellant] with a “volume discount”
      that would enable him to avoid any sort of punishment for the
      criminal acts he committed within Lebanon County. Accordingly,
      we rejected the parties’ plea agreement. We then entered a
      [c]ourt [o]rder directing that the case be relisted for trial during
      the February 2016 term of [c]ourt. We did not afford the
      Commonwealth with the opportunity to investigate whether it
      would suffer prejudice, and we did not schedule a hearing
      regarding [Appellant’s] request to withdraw his plea of guilty.




(Footnote Continued) _______________________

However, the written plea colloquy confirms Appellant’s version of events, as
does the docket and the sentencing court’s treatment of the plea as at least
partially negotiated. (See Written Guilty Plea Colloquy, 8/18/15, at 6;
Sentencing Court Opinion, 8/09/16, at 1).        See Commonwealth v.
Dalberto, 648 A.2d 16, 19-21 (Pa. Super. 1994), appeal denied, 655 A.2d
983 (Pa. 1995), cert. denied, 516 U.S. 818 (1995) (discussing difference
between negotiated, open, and hybrid guilty pleas).




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(See Sentencing Court Opinion, 8/09/16, at 2-3; Order, 12/07/15).2

       On April 1, 2016, the Commonwealth filed a motion for a briefing

schedule and evidentiary hearing. In the motion, the Commonwealth stated

it could not proceed to trial because of the inability to locate the only

witness.      (See     Commonwealth’s          Motion   for   Briefing   Schedule   and

Evidentiary Hearing, 4/01/16, at unnumbered page 2).3 The Commonwealth

sought briefing and a hearing on the issue.             (See id.).   Subsequently, on

September 27, 2016, the sentencing court reinstated the plea agreement.

(See Order, 9/27/16, at 3). On December 19, 2016, the court sentenced

Appellant to not less than the minimum time already served in the Lebanon

County Correctional facility nor more than two years of incarceration in a

state correctional facility. (See N.T. Sentencing, 12/19/16, at 10-11). The

instant, timely appeal followed.4

       On appeal, Appellant raises the following questions for our review:


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2  There is no written motion to withdraw the guilty plea in the certified
record. In a later order, the court states that Appellant never made a formal
motion to withdraw. (See Order, 9/27/16, at 3). It appears Appellant made
an oral motion to withdraw. As discussed, infra, it is not clear whether the
trial court ruled on the motion. (See id.; Sentencing, Ct. Op., at at 1).

3 It appears that in early 2016, in some manner dehors the record, all
parties became aware that the Commonwealth was unable to locate its only
witness, the store detective.

4 Appellant complied with the dictates of Pennsylvania Rule of Procedure
1925(b). See Pa.R.A.P. 1925(b).



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        I.       Did the [sentencing c]ourt err by ultimately denying the
               Appellant’s [m]otion to [w]ithdraw [g]uilty [p]lea when
               the [sentencing c]ourt, at first, granted the Appellant’s
               [m]otion and only subsequently denied the [m]otion
               upon the Commonwealth filing an untimely objection one
               hundred and fifteen (115) days after the initial [m]otion
               to [w]ithdraw was granted?

        II.     Did the [sentencing c]ourt err by continuing to
               recognize the Commonwealth’s alleged prejudice,
               denying the Appellant’s repeated request to withdraw his
               plea and proceeding with [s]entencing?

(Appellant’s Brief, at 6).5

       Our scope and standard of review are settled.

             Preliminarily, we recognize that at “any time before the
       imposition of sentence, the court may, in its discretion, permit,
       upon motion of the defendant, or direct sua sponte, the
       withdrawal of a plea of guilty or nolo contendere and the
       substitution of a plea of not guilty.” Pa.R.Crim.P 591(A). The
       Supreme Court of Pennsylvania recently clarified the standard of
       review for considering a trial court’s decision regarding a
       defendant’s pre-sentence motion to withdraw a guilty plea:

                    [T]rial courts have discretion in determining
              whether a withdrawal request will be granted; such
              discretion is to be administered liberally in favor of
              the accused; and any demonstration by a defendant
              of a fair-and-just reason will suffice to support a
              grant, unless withdrawal would work substantial
              prejudice to the Commonwealth.

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5 Despite raising two questions in its statement of the questions involved,
Appellant does not divide his argument into sections, contrary to our rules of
appellate procedure. (See Appellant’s Brief, at 13-19); see also Pa.R.A.P.
2119(a) (“The argument shall be divided into as many parts as there are
questions to be argued[.]”).




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      Commonwealth v. Carrasquillo, 631 Pa. 692, 115 A.3d 1284,
      1285, 1291–92 (2015) (holding there is no per se rule regarding
      pre-sentence request to withdraw a plea, and bare assertion of
      innocence is not a sufficient reason to require a court to grant
      such request). We will disturb a trial court’s decision on a
      request to withdraw a guilty plea only if we conclude that the
      trial court abused its discretion.

Commonwealth v. Blango, 150 A.3d 45, 47 (Pa. Super. 2015), appeal

denied, 2017 WL 1374163 (Pa. filed Apr. 12, 2017) (citation and footnote

omitted).

      However, prior to discussing the merits of Appellant’s contention, we

must first determine whether the record is sufficiently complete to enable

our review.   As discussed above, several transcripts are missing from the

certified record, including, critically, the transcript of the December 4, 2015

proceeding.

      While, as quoted above, the sentencing court described the events of

that date in its August 9, 2016 opinion, there appear to be important

differences between its version of events and those of the parties.        For

example, the sentencing court believes that it never ruled on Appellant’s oral

motion to withdraw his guilty plea. (See Sentencing Ct. Op., at 3 (stating

that it never scheduled a hearing on the motion); see also N.T. Hearing,

5/25/16, at 3 (sentencing court stating that one issue to be resolved is

whether appellant has right to withdraw plea after court rejected it); N.T.

Sentencing, 12/19/16, at 5-7 (sentencing court’s discussion of how it

rejected plea)).   However, Appellant maintains that the sentencing court


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granted his motion to withdraw the guilty plea. (See Appellant’s Brief, at 8;

N.T. Sentencing, at 5).6            Moreover, Appellant seems to dispute the

sentencing court’s position (see Trial Ct. Op., at 3), that it immediately

scheduled the matter for trial, giving the Commonwealth no opportunity to

investigate whether it would be prejudiced. (See Appellant’s Brief, at 8-9)

(describing sentencing court granting motion to withdraw, discussing

Appellant’s purported claim of actual innocence, stating matter was not

scheduled for trial until call of list on January 19, 2016, and that

Commonwealth subsequently filed multiple motions for continuance).7

       In the instant matter, the gravamen of Appellant’s argument is that

the Commonwealth failed to comply with Pennsylvania Rule of Criminal

Procedure 591, which allows the Commonwealth ten days to allege prejudice

regarding the withdrawal of a guilty plea; and that the Commonwealth acted

in a dilatory manner in ascertaining whether it was able to proceed to trial.

(See Appellant’s Brief, at 12). In response, the Commonwealth argues that
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6 The Commonwealth also states that the sentencing court granted the
motion to withdraw the guilty plea. (See Commonwealth’s Brief, at 3).
However, later in its brief, the Commonwealth undercuts this claim, stating,
“had the defendant been able to withdraw his plea[.]” (Id. at 7).

7 The Commonwealth also seems to dispute that the matter was immediately
set for trial because of the sentencing court’s rejection of the plea; rather,
the Commonwealth states that it was Appellant who requested the matter be
set for trial.    (See the Commonwealths’ Brief, at 3).         However, the
Commonwealth contends that Appellant never requested a trial until January
19, 2016. (See id.). We note that there is no transcript of the January 19,
2016 proceeding.



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Rule 591 does not apply. (See Commonwealth’s Brief, at 8). Instead, the

Commonwealth argues that Pennsylvania Rule of Criminal Procedure

575(a)(2), concerning pretrial motions controls. (See id.). Moreover, the

Commonwealth disputes Appellant’s claims of a dilatory investigation,

arguing that it had no reason to investigate before Appellant requested the

case be listed for trial in mid-January 2016. (See id. at 10-12).

      As noted above, in its opinion, the sentencing court’s version of the

events differs from both Appellant’s and the Commonwealth’s.             (See

Sentencing Ct. Op., at 2-3). In its opinion, the sentencing court claims that

its mishandling of events on December 4, 2015, led to a situation where the

Commonwealth had no opportunity to respond to Appellant’s oral motion to

withdraw the guilty plea because it rejected the plea and immediately

scheduled the case for trial. (See id. at 1-5).

      Thus, our review of the record, the sentencing court opinion, and the

briefs of the parties make it clear that the transcript of the December 4,

2015 hearing is critical to determining the issues of whether:         (1) the

sentencing court rejected the plea; (2) the sentencing court having rejected

the plea, ruled on Appellant’s oral motion to withdraw his guilty plea; (3) the

Commonwealth had an opportunity to respond to the motion; and (4) the

sentencing court sua sponte scheduled the case for trial or Appellant

subsequently requested that the case be listed for trial.       We note that




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Appellant’s request for a transcript only seeks the transcript for sentencing

on December 19, 2016.8 (See Request for Transcript, 12/28/16).

       We have stated “[w]hen the appellant . . . fails to conform to the

requirements of [Pa.R.A.P.] 1911 [relating to transcript requests], 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. Preston, 904 A.2d 1, 7 (Pa. Super. 2006), appeal

denied, 916 A.2d 632 (Pa. 2007) (citation omitted).          Further, it is the

appellant’s responsibility to make certain that the certified record contains all

items necessary to ensure that this Court is able to review his claims. See

Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa. Super. 2008) (en

banc). This Court has stated:

             It is black letter law in this jurisdiction that an appellate
       court cannot consider anything which is not part of the record in
       the case. It is also well-settled in this jurisdiction that it is
       Appellant’s responsibility to supply this Court with a complete
       record for purposes of review. A failure by appellant to insure
       that the original record certified for appeal contains sufficient
       information to conduct a proper review constitutes waiver of the
       issue sought to be examined.

Commonwealth v. Martz, 926 A.2d 514, 524-25 (Pa. Super. 2007), appeal

denied, 940 A.2d 363 (Pa. 2008) (citations and quotation marks omitted).

In Commonwealth v. O’Black, 897 A.2d 1234 (Pa. Super. 2006), we noted
____________________________________________


8 This Court made inquiry of the trial court in an attempt to locate the
missing transcripts. The trial court informed us that it had not transcribed
them because Appellant had not requested that it do so.



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that the trial transcript was not in the reproduced or certified record and that

our attempt to find the transcript had been unavailing. In finding waiver, we

stated,

            . . . this is a far different situation than where there are
      notes of testimony in the reproduced record, or the notes are
      referred to by the parties or listed in the record inventory sent to
      this Court, when we know the transcript or notes of testimony
      exist but are not in the certified record. In those situations, we
      well might make an informal inquiry to the trial court to see if
      there was an error in transmission to this Court or otherwise
      remand to see if the transcript or notes of testimony can be
      located and transmitted. Indeed, this is not a situation where
      [the appellant] alleged error on the part of the clerk in
      transmitting the record.

Id. at 1238.

      An appellant’s failure to ensure that the original record as certified for

appeal contains sufficient documentation to enable the court to conduct a

proper review constitutes a waiver of the issue[s] sought to be reviewed on

appeal.   See Growall v. Maietta, 931 A.2d 667, 676 (Pa. Super. 2007),

appeal denied, 951 A.2d 1164 (Pa. 2008); see also Smith v. Smith, 637

A.2d 622, 623-24 (Pa. Super. 1993), appeal denied, 652 A.2d 1325 (Pa.

1994). Accordingly, we find that Appellant waived all issues on appeal and

we are therefore constrained to affirm.

      Judgment of sentence affirmed.

      President Judge Gantman joins the Memorandum.

      Judge Lazarus files a Dissenting Memorandum.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2017




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