P. v. Butler CA2/4
Defendant Antwaine Devon Butler is appealing from the denial of his post-judgment motion for modification of sentence. After the notice of appeal was filed, the superior court clerk was unable to locate defendant’s moving papers. The trial court then explained its ruling in a certified settled statement. At the request of defense counsel, the record on appeal has been augmented to include that settled statement.
Defense counsel filed a Wende brief that raised no potentially arguable issues. Concerned by the omission of his moving papers from the record on appeal, defendant submitted a separate request to treat the appeal as a petition for writ of habeas corpus. (See In re Harris (1993) 5 Cal.4th 813, 826–827 [where record on appeal is insufficient to rule on appellant’s claim, appellant may seek habeas relief by alleging facts, which, if true, would entitle appellant to relief].) We decline to do so. Because the certified settled statement provides a sufficient record
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