Com. v. Warren, W.

J-S76027-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM WARREN, :
:
Appellant. : No. 643 WDA 2018
Appeal from the Judgment of Sentence, March 8, 2018,
in the Court of Common Pleas of Cambria County,
Criminal Division at No(s): CP-11-CR-0001633-2017.
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY KUNSELMAN, J.: FILED MARCH 01, 2019
William Warren appeals from the judgment of sentence imposed after
he plead guilty to one count of possession with intent to deliver.1 We affirm.
The trial court summarized the pertinent facts and procedural history as
follows:
On February 1, 2018 Warren entered a guilty plea in this
matter pursuant to a Disposition Under Rule 590(B) of the
Rules of Criminal Procedure (Plea Agreement) to one count
of Possession with Intent to Deliver (PWID). The Plea
Agreement further indicates that there was no agreement
as to sentence or any other matter and that all remaining
charges would be nol prossed thirty-one (31) days after
sentencing unless an appeal was filed.
On March 8, 2018, Warren was sentenced in this matter
based upon his prior record score (PRS) of 5 and offense
gravity score (OGS) of 5 to: pay $300 to the Special
Administration Fund; and serve eighteen (18) to fifty-nine
(59) months [of] incarceration in the Cambria County
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1 35 Pa.C.S.A. § 780-113(a)(16).
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Prison. This sentence was within the standard range and
less than the statutory maximum. Warren was given credit
for time served and found to be eligible for a re-entry
program and specifically found eligible for the Cambria
County Day Reporting Center (DRC) program. On March 14,
2018, Warren filed a Post-trial Motion seeking a sentence
modification of his sentence alleging it was excessively
harsh or in the alternative to be deemed re-entry eligible
and evaluated for the DRC. A hearing on the Motion was
held for April 10, 2018, and Motion was denied by Order that
same date, however, Warren was directed to be evaluated
for entry into the DRC.
Trial Court Opinion, 6/19/18, at 1-2.2
This timely appeal follows. Both Warren and the trial court have
complied with Pa.R.A.P. 1925.
Warren raises a single issue for our review: “Whether the trial court
erred in denying Warren’s post sentence motion?” See Warren’s Brief at 4.
Specifically, Warren alleges that the trial court “abused its discretion when it
sentenced him without regard to his need for in-patient rehabilitation.” Id. at
5. Furthermore, Warren asserts that although his sentence falls within the
standard range of Pennsylvania Sentencing Guidelines, it nonetheless is
unduly harsh and excessive. Id.
Warren’s claim implicates a challenge to the discretionary aspects of his
sentence. As this Court has summarized:
Challenges to the discretionary aspects of sentence do not
entitle an appellant to review as of right. An appellant
____________________________________________
2 We are not sure why Warren, as part of his post-sentence motion, would
alternatively request to be “deemed re-entry eligible and evaluated for the
DRC,” since the trial court found him to be eligible for the program.
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challenging the discretionary aspects of his sentence must
invoke this Court’s jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (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.A. § 9781(b).
Commonwealth v. Griffin, 65 A.3d 932, 935-36 (Pa. Super. 2013) (citations
omitted).
Warren has filed a timely appeal, properly preserved his sentencing
issue, and provided the requisite Rule 2119(f) statement. Normally, we would
proceed to determine whether Warren has raised a substantial question.
However, as explained below, we are unable to reach the merits of Warren’s
sentencing claims because he has neglected to ensure the pertinent
sentencing transcripts appear in the certified record.
It is well settled that an appellant bears the responsibility to ensure the
certified record on appeal is complete so that this Court has all the materials
necessary to conduct its review. Commonwealth v. Kleinicke, 895 A.2d
562, 575 (Pa. Super. 2006) (en banc). This Court has stated that:
The fundamental tool for appellate review is the official
record of the events that occurred in the trial court. To
ensure that an appellate court has the necessary records,
the Pennsylvania Rules of Appellate Procedure provide for
the transmission of a certified record from the trial court to
the appellate court. The law of Pennsylvania is well settled
that matters which are not of record cannot be considered
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on appeal. Thus, an appellate court is limited to considering
only the materials in the certified record when resolving an
issue.
***
This Court cannot meaningfully review claims raised on
appeal unless we are provided with a full and complete
certified record. This requirement is not a mere
“technicality” nor is this a question of whether we are
empowered to complain sua sponte of lacunae in the record.
In the absence of an adequate certified record, there is no
support for an appellant's arguments and, thus, there is no
basis on which relief could be granted.
Commonwealth v. Preston, 904 A.2d 1, 6-7 (Pa. Super. 2006) (en banc)
(citations omitted).
“An appellant should not be denied appellate review if the failure to
transmit the entire record was caused by an ‘extraordinary breakdown in the
judicial process.’” Commonwealth v. Williams, 715 A.2d 1101, 1106 (Pa.
1998). However, “[i]n the absence of specific indicators that a relevant
document exists but was inadvertently omitted from the certified record, it is
not incumbent upon this Court to expend time, effort and manpower scouting
around judicial chambers or the various prothonotaries' offices of the courts
of common pleas for the purpose of unearthing transcripts . . . that well may
have been presented to the trial court but never were formally introduced and
made part of the certified record.” Preston, 904 A.2d at 7-8.
Within his notice of appeal, Warren indicated “that the complete
transcript has been lodged of record at the Cambria County Clerk of Courts.”
Warren’s Notice of Appeal, 4/20/18, at 1. Our review of the certified record
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however, that Warren made no formal request for the transcripts, and the
record does not include any transcripts. As the trial court reasoned:
Here, no transcript request was filed for either Warren’s
sentencing hearing or the hearing on the Post-sentence
Motion. Accordingly, the court reporters assigned to those
hearings did not prepare those transcripts. It was neither
the court reporters nor the Court’s duty to investigate which
transcripts were necessary, rather it was Warren’s
obligation under the Rules to order the specific transcripts
necessary in his appeal. Since Warren has failed to have
the necessary transcripts prepared it is not possible for this
Court or the Superior Court to address the issues raised on
appeal and they must be deemed waived.
Trial Court Opinion, 6/18/18, at 8. We agree
Without the benefit of the sentencing transcripts, we cannot
meaningfully review the merits of Warren’s arguments, as there is no support
for his sentencing claims upon which this Court could grant relief. Preston,
supra. Accordingly, we affirm Warren’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/01/2019
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