Com. v. Kokke, W. ( 2014 )

J-S68041-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
WILHELMUS C. KOKKE, :
:
Appellant : No. 996 EDA 2014
Appeal from the Judgment of Sentence entered on February 27, 2014
in the Court of Common Pleas of Montgomery County,
Criminal Division, No. CP-46-SA-0001363-2013
BEFORE: ALLEN, JENKINS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 26, 2014
Wilhelmus C. Kokke (“Kokke”) appeals from his guilty plea to the
summary offense of public drunkenness.1 We dismiss the appeal.
On or about July 26, 2013, Kokke was issued a citation for public
drunkenness, and a separate citation for violation of Lower Merion Township
Ordinance § 111-4.2, which prohibits the possession of an open container of
alcoholic beverages in a public place. Kokke pled not guilty to these
offenses. On November 21, 2013, a magistrate found Kokke guilty of these
offenses, and imposed fines. Kokke failed to pay the fines, and a bench
warrant was issued for his arrest. Kokke eventually paid the fines, and, pro
se, filed a summary appeal of his convictions.
1
See 18 Pa.C.S.A. § 5505.
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On February 27, 2014, Kokke, acting pro se at the summary appeal
hearing held by the trial court, entered a negotiated guilty plea to the
summary offense of public drunkenness,2 pursuant to which he received a
$25.00 fine. On March 31, 2014, Kokke, pro se, filed a timely Notice of
Appeal. The trial court ordered Kokke to file a Pa.R.A.P. 1925(b) concise
statement. In response, Kokke filed a one-page letter to the trial court,
describing in narrative format his objections to the manner in which his
guilty plea was negotiated with the Commonwealth and accepted by the trial
court.3 Thereafter, the trial court issued an Opinion pursuant to Pa.R.A.P.
1925(a).
On appeal, Kokke raises the following issues for our review:
1. Has [Kokke] preserved his appeal by obtaining the transcript
(1) after obtaining counsel[;] and (2) despite extenuating
circumstances?
2. Should [Kokke’s] guilty plea be thrown out as constitutionally
deficient because of lack of process, specifically relating to the
colloquy or lack thereof?
Brief for Appellant at 5.
In his appellate brief, Kokke claims that his guilty plea, entered at the
summary appeal hearing, was deficient because it was not knowing,
voluntary or intelligent. See id. at 12-16. In its Pa.R.A.P. 1925(a) Opinion,
2
As part of the negotiated plea agreement, the Commonwealth withdrew the
charge pertaining to the possession of an open container of alcoholic
beverages in a public place
3
Kokke subsequently retained appellate counsel.
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the trial court indicated that “any consideration of [Kokke’s] factual
allegations is impossible because [Kokke] failed to order the transcript [of
the summary appeal hearing], as he is required by Pa.R.A.P. 1911.” Trial
Court Opinion, 5/27/14, at 2. For this reason, the trial court determined
that Kokke failed to preserve any issues for appellate review. See id.
It is the appellant’s responsibility to ensure that any relevant
transcripts be ordered and filed as part of the original record. See Pa.R.A.P.
1911(a); see also Commonwealth v. Johnson, 668 A.2d 97, 102 (Pa.
1995). If the appellant fails to comply with the requirements for preparation
of the transcript, this Court may dismiss the appeal. See Pa.R.A.P. 1911(d).
While Kokke has appended a copy of the transcript of the summary
appeal hearing to his appellate brief, this does not make the transcript part
of the certified record on appeal. See Commonwealth v. Johnson, 33
A.3d 122, 126 n.6 (Pa. Super. 2011) (stating that an appellate court cannot
consider anything which is not part of the record in the case); see also
Commonwealth v. Holley, 945 A.2d 241, 246 (Pa. Super. 2008) (stating
that, for purposes of appellate review, what is not of record does not exist).
Here, Kokke failed to timely order the transcript of the
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summary appeal hearing and, therefore, it is not part of the certified record
on appeal.4 Because we do not have a complete record before us from
which to determine whether Kokke’s guilty plea was deficient, we must
dismiss Kokke’s appeal.
Appeal dismissed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/26/2014
4
Although Kokke contends that he did, in good faith, attempt to order the
transcript of the summary appeal hearing several times, see Brief for
Appellant at 10, the record is devoid of evidence that Kokke made any effort
to timely order the transcript. Kokke also claims that this Court should
overlook his failure to comply with our technical and procedural
requirements due to his pro se status. Id. at 10-11. However, Kokke’s pro
se status at the time he filed his Notice of Appeal does not excuse his
deviations from our rules of procedure. See Commonwealth v. Spuck, 86
A.3d 870, 874 (Pa. Super. 2014) (stating that, although Pennsylvania courts
endeavor to be fair to pro se litigants, Pennsylvania appellate courts must
demand that pro se litigants comply substantially with our rules of
procedure).
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