Com. v. Ash, W. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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