Com. v. Ash, W.
54 MDA 2017
| Pa. Super. Ct. | Nov 14, 2017Background
- William Ash pleaded guilty on August 18, 2015 to retail theft and conspiracy; parties dispute whether plea was negotiated or open.
- Sentencing was delayed and the case reassigned; a December 4, 2015 proceeding (critical) was not transcribed and is missing from the certified record.
- At the December 4 proceeding an oral issue arose about withdrawing the plea after the court purportedly rejected the plea and/or scheduled the case for trial; parties present conflicting versions of what occurred.
- Commonwealth later reported it could not locate its only witness and sought time to brief/address prejudice; the court ultimately reinstated the plea and on December 19, 2016 sentenced Ash to time served to two years.
- On appeal Ash argued the trial court erred by denying his pre‑sentence motion to withdraw his guilty plea and that the Commonwealth failed to timely assert prejudice under Pa.R.Crim.P. 591; the Superior Court found the certified record incomplete (missing transcripts) and deemed the issues waived.
Issues
| Issue | Plaintiff's Argument (Ash) | Defendant's Argument (Commonwealth) | Held |
|---|---|---|---|
| Whether trial court erred in denying Ash's pre‑sentence motion to withdraw his guilty plea | Court initially granted withdrawal then later denied it; Commonwealth failed to timely object under Pa.R.Crim.P. 591 and acted dilatorily | Rule 591 does not apply; Rule 575(a)(2) (pretrial motions) governs; Commonwealth had no duty to investigate until matter listed for trial | Issues not reached on merits — appeal waived because record lacking critical transcript(s) |
| Whether Commonwealth suffered prejudice from withdrawal and timing of its response | Argues Commonwealth was prejudiced by delay and inability to locate witness; prejudice assessment required by Rule 591 | Argues no prejudice could be assessed before case was set for trial; delay was reasonable | Not decided on merits due to waiver for incomplete record |
| Whether the trial court rejected the plea and/or ruled on the oral motion to withdraw at the December 4, 2015 hearing | Court purportedly granted withdrawal according to Ash; he asserts an oral motion was granted and matter later relisted | Commonwealth disputes timing and contends Ash requested trial listing later; factual dispute exists | Factual disputes turn on missing December 4 transcript; appellate review unavailable — waiver enforced |
| Whether appellant is responsible for ensuring the record (transcripts) needed for review | Ash requested only Dec. 19, 2016 transcript; did not secure Dec. 4 transcript required to resolve issues | Commonwealth and court note missing transcript prevents appellate review | Court applied precedent that appellant must provide complete record; issues waived and judgment affirmed |
Key Cases Cited
- Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 2015) (standard for pre‑sentence plea withdrawal; discretion to be liberally administered)
- Commonwealth v. Blango, 150 A.3d 45 (Pa. Super. 2015) (appellate review standard for plea‑withdrawal rulings)
- Commonwealth v. Dalberto, 648 A.2d 16 (Pa. Super. 1994) (distinctions among negotiated, open, and hybrid pleas)
- Commonwealth v. Preston, 904 A.2d 1 (Pa. Super. 2006) (failure to request necessary transcripts under Pa.R.A.P. 1911 results in waiver)
- Commonwealth v. B.D.G., 959 A.2d 362 (Pa. Super. 2008) (appellant’s responsibility to ensure certified record is complete)
- Commonwealth v. Martz, 926 A.2d 514 (Pa. Super. 2007) (appellate court cannot consider matters not in the certified record)
- Commonwealth v. O'Black, 897 A.2d 1234 (Pa. Super. 2006) (distinguishing missing transcript situations and effect on waiver)
- Growall v. Maietta, 931 A.2d 667 (Pa. Super. 2007) (failure to include necessary record items causes waiver)
- Smith v. Smith, 637 A.2d 622 (Pa. Super. 1993) (same)