Com. v. Sharp, W.

J-S37017-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WHITLEY ELISE SHARP
Appellant No. 1877 MDA 2016
Appeal from the Judgment of Sentence September 27, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0002383-2016
CP-22-CR-0002530-2016
BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.
MEMORANDUM BY MOULTON, J.: FILED AUGUST 21, 2017
Whitley Elise Sharp appeals from the September 27, 2016 judgment of
sentence entered in the Dauphin County Court of Common Pleas following
her entry of guilty pleas to endangering the welfare of children (“EWOC”),
possession of a controlled substance, and possession of drug paraphernalia.1
Because the transcript from Sharp’s sentencing hearing is not in the certified
record and we cannot determine whether the failure to include the transcript
was caused by Sharp’s counsel or by the trial court, we remand for an
evidentiary hearing.
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1
18 Pa.C.S. § 4304(a), 35 P.S. § 780-113(a)(16), and 35 P.S. § 780-
113(a)(32), respectively.
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On August 11, 2016, Sharp pled guilty to the aforementioned offenses.
On September 26, 2016, the trial court sentenced Sharp to 3½ to 7 years’
incarceration on the conviction for EWOC and imposed no further
incarceration on the other offenses. On September 28, 2016, Sharp filed a
post-sentence motion to modify sentence, alleging that her sentence was
outside the aggravated range and that the sentencing court did not consider
the factors set forth in section 9721(b) of the Sentencing Code. The trial
court denied the motion on October 19, 2016. On November 11, 2016,
Sharp timely filed a notice of appeal.
Sharp’s sole issue on appeal is whether the trial court abused its
discretion by imposing consecutive sentences “where [Sharp]’s conduct was
not so egregious to warrant a three and one half to seven . . . years
sentence.” Sharp’s Br. at 8.
Preliminarily, we must address the missing transcript from the
sentencing hearing (herein “sentencing transcript”). In its Pennsylvania Rule
of Appellate Procedure 1925(a) opinion, the trial court stated that it
“properly exercised its discretion in sentencing [Sharp] in the aggravated
range on the charge of [EWOC]” but noted that Sharp failed to request the
sentencing transcript. Trial Ct. Op., 1/26/17, at 2. The trial court stated
that this failure prevented it from “fully cit[ing] the reasons [it] relied upon
for the sentence and which [it] set forth at length.” Id. at 3. While noting
that this Court could find Sharp’s claims waived on this basis, the trial court
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requests that we remand the matter to allow Sharp to “properly request and
file a transcript.”2 Id.
Sharp argues that the trial court failed to consider the sentencing
factors under section 9721(b) in imposing sentence, which requires us to
review the sentencing proceedings. “Our law is unequivocal that the
responsibility rests upon the appellant to ensure that the record certified on
appeal is complete in the sense that it contains all of the materials necessary
for the reviewing court to perform its duty.” Commonwealth v. Preston,
904 A.2d 1, 7 (Pa.Super. 2006). Further, Pennsylvania Rule of Appellate
Procedure 1911(a) requires that the appellant request a transcript. “When
the appellant . . . fails to conform to the requirements of [Pennsylvania] Rule
[of Appellate Procedure] 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.” Preston, 904 A.2d at 7. “It is not
proper for either the Pennsylvania Supreme Court or the Superior Court to
order transcripts nor is it the responsibility of the appellate courts to obtain
the necessary transcripts.” Id.
The trial court issued its Rule 1925(a) opinion on January 26, 2017.
Seven days later, on February 2, 2017, Sharp’s counsel filed two requests
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2
Neither Sharp nor the Commonwealth addressed this issue in their
respective briefs. Considering the nature of Sharp’s claim and the trial
court’s statements in its Rule 1925(a) opinion, their failure to do so is
surprising.
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for transcripts. The first requested a transcript of the “entire proceedings”
on September 26, 2016 (the date that Sharp was sentenced) and stated that
the transcript was needed by February 20, 2017. The second requested a
transcript of the “entire proceedings” on “August 11, 2016—Guilty Plea” and
stated that the transcript was needed by March 17, 2017. On March 8,
2017, the Dauphin County Court Reporters Office filed a notice of lodging,
stating that Sharp’s guilty plea transcript had been certified and filed as part
of the record. As of the date of this memorandum, the certified record does
not show that the Court Reporters Office has lodged a transcript of the
sentencing proceedings with the Dauphin County Clerk of Courts.
We cannot discern from the existing record whether Sharp’s counsel or
the trial court caused an incomplete record to be sent to this Court. In a
similar case, our Supreme Court remanded the matter to the trial court to
determine whether an “extraordinary breakdown in the judicial process”
occurred that prevented transmittal of the complete record to this Court.
See Commonwealth v. Williams, 715 A.2d 1101, 1106 (Pa. 1998).
Williams involved a missing transcript from a suppression hearing, which
defense counsel allegedly had requested but failed to include in the certified
record. Id. at 1102-03. Defense counsel, however, claimed that he had
passed the transcript to the Commonwealth, who then bore the burden of
providing the notes to the Clerk of Quarter Sessions. Id. at 1103. This
Court found that Williams had waived his claims because he had failed to
complete the record. Id. at 1103. On appeal, our Supreme Court concluded
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that an appellant “should not be denied appellate review if the failure to
transmit the record was caused by an ‘extraordinary breakdown in the
judicial process.’” Id. at 1106. The Court remanded Williams’ case to the
trial court to determine whether the Philadelphia County Clerk of Quarter
Sessions or defense counsel caused the delay in transmitting the record to
this Court. Id. Our Supreme Court concluded:
We agree with the Superior Court majority where it states
that Williams’ judgment of sentence should be affirmed if
the defense caused the delay in transmitting the record to
the Superior Court. We also agree with the Superior Court
dissent where it states that Williams should not be denied
appellate review if the failure to transmit the record was
caused by an “extraordinary breakdown in the judicial
process.” However, the majority and the dissent reach
opposite conclusions because the reasons why the record
was not transmitted are not in the record.
Id. at 1106.
Here, Sharp’s counsel did not request any transcripts until after the
trial court filed its Rule 1925(a) opinion, but counsel did request the
sentencing transcript on February 2, 2017, to be completed no later than
February 20, 2017. That same day, counsel also filed a request for the
guilty plea transcript, to be completed no later than March 17, 2017, to
which the Court Reporters Office filed a notice of lodging on March 8, 2017.
Given that counsel made an effort to complete the record before filing his
brief on March 21, 2017, we cannot definitively conclude that Sharp waived
her claim by failing to complete the record. Under these circumstances, it is
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possible that an “extraordinary breakdown in the judicial process” may have
occurred that resulted in the Clerk of Courts sending an incomplete record.
Therefore, in accordance with Williams, we remand this matter to the
trial court for an evidentiary hearing, to be held within 30 days of the date of
this memorandum; the trial court shall inform this Court of its decision. If
the trial court determines that an “extraordinary breakdown in the judicial
process” caused the sentencing transcript to be excluded from the record,
then Sharp shall be allowed to supplement the record with the sentencing
transcript. If Sharp is allowed to supplement the record, Sharp shall also
submit a sentencing transcript to the trial court. Within 30 days of receipt of
the sentencing transcript, the trial court shall issue a new Rule 1925(a)
opinion addressing the merits of Sharp’s claim.3
Case remanded with instructions. Jurisdiction retained.
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3
A new Rule 1925(a) opinion addressing the merits of Sharp’s
sentencing claim will allow this Court to determine whether the trial court
acted within its discretion in sentencing Sharp.
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