Com. v. McNear, D. ( 2017 )

J-S94020-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
DEVIN MCNEAR
Appellant No. 1039 MDA 2016
Appeal from the Judgment of Sentence May 17, 2016
in the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0000018-2016
BEFORE: LAZARUS, J., RANSOM, J., and FITZGERALD, J.*
MEMORANDUM BY RANSOM, J.: FILED APRIL 21, 2017
Appellant, Devin McNear, appeals from the judgment of sentence,
imposed May 17, 2016, following a guilty plea resulting in his conviction for
theft by unlawful taking. Appellant’s counsel, Donna M. De Vita, Esq., seeks
to withdraw her representation of Appellant pursuant to Anders v.
California, 87 S. Ct. 1936 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). We affirm and grant counsel’s petition to withdraw.
We adopt the following statement of facts, garnered from the trial
court’s opinion, which in turn is supported by the record.
The victim[, Tara Flannery,] stated that she allowed [Appellant]
to stay overnight in her home on October 18, 2015. The next
morning, she noticed that a jar containing change was empty,
but she wasn't concerned. However, on October 20, 2015, the
victim noticed that a gun case containing two (2) rifles, a Mauser
rifle stamped 1938 and an Enfield Savage rifle, was missing from
the spare bedroom. Attempts to reach the [Appellant] were
unanswered. On October 22, 2015, the victim notified police
* Former Justice specially assigned to the Superior Court.
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that [Appellant] was in the hospital as a result of a car accident.
[Sergeant] Cotillo contacted the Scranton Police Depart [sic] who
responded to the scene of the accident and discovered that the
rifles were in the vehicle at the time of the accident. The owner
of the car did not know how the rifles got in her car and told
police that her daughter was driving. The daughter stated
[Appellant] brought the change, clothes, and the gun case into
her vehicle …
Trial Ct. Op., 8/22/16, at 1-2 (internal citations omitted).
Appellant was charged with two counts of theft by unlawful taking and
two counts of receiving stolen property.1 In February 2016, Appellant
entered a guilty plea to one count of theft by unlawful taking; the remaining
charges were nolle prossed. Appellant completed a written and oral guilty
plea colloquy.
In May 2016, the trial court sentenced Appellant to one to two years of
incarceration followed by three years of probation to be served consecutively
to a prior conviction by the trial court.2 At sentencing, the trial court
specifically noted that Appellant was ineligible to participate in a state or
county intermediate punishment program as he had prior sexual assault
adjudications. Notes of Testimony (N.T.), 5/17/2016, at 3-5; see 42
Pa.C.S. § 9721(a.1) and 42 Pa.C.S. § 9802. Appellant timely filed a motion
for reconsideration of sentence solely on the ground that a sentence served
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1
18 Pa.C.S. § 3921(a), and 3925(a), respectively.
2
In December 2015, Appellant was sentenced to six to twenty-four months
of incarceration for one count of false report to law enforcement- falsely
incriminating another, under docket number CP-35-CR-0001587-2015. Trial
Ct. Op. at 2 n.1; see 18 Pa.C.S. § 4906(a).
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in intermediate punishment would be more beneficial to him as an individual
who habitually abused drugs. Petition for Reconsideration of Sentence,
5/18/2016. This motion was denied by the trial court.
In June 2016, Appellant timely filed a notice of appeal and a court-
ordered Pa.R.A.P. 1925(b) statement. The trial court issued a responsive
opinion.
In October 2016, appellate counsel filed in this Court an Anders brief
and application to withdraw as counsel. The brief sets forth the following
issue Appellant seeks to raise on appeal:
1. Whether the sentences imposed were harsh and unreasonable
and a manifest abuse of discretion?
Appellant’s Brief at 4.
When faced with a purported Anders brief, this Court may not review
the merits of any possible underlying issues without first examining
counsel’s request to withdraw. Commonwealth v. Goodwin, 928 A.2d
287, 290 (Pa. Super. 2007) (en banc). Prior to withdrawing as counsel on
direct appeal under Anders, counsel must file a brief that meets the
requirements established by the Pennsylvania Supreme Court in Santiago,
namely:
(1) provide a summary of the procedural history and facts, with
citations to the record;
(2) refer to anything in the record that counsel believes arguably
supports the appeal;
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(3) set forth counsel's conclusion that the appeal is frivolous;
and
(4) state counsel's reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of record,
controlling case law, and/or statutes on point that have led to
the conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361.
Counsel also must provide a copy of the Anders brief to his
client. Attending the brief must be a letter that advises the
client of his right to: “(1) retain new counsel to pursue the
appeal; (2) proceed pro se on appeal; or (3) raise any points
that the appellant deems worthy of the court[’]s attention in
addition to the points raised by counsel in the Anders brief.”
Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super.
2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).
After determining that counsel has satisfied these technical requirements of
Anders and Santiago, only then may this Court “conduct an independent
review of the record to discern if there are any additional, non-frivolous
issues overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d
1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).
In the instant matter, Attorney De Vita’s Anders brief complies with
the above-stated requirements. Namely, she includes a summary of the
relevant factual and procedural history, she refers to the portions of the
record that could arguably support Appellant’s claims, and she sets forth her
conclusion that Appellant’s appeal is frivolous. She explains her reasoning
and supports her rationale with citations to the record as well as pertinent
legal authority. Attorney De Vita avers she has supplied Appellant with a
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copy of her Anders brief and a letter explaining the rights enumerated in
Nischan.3 Accordingly, counsel has complied with the technical
requirements for withdrawal. Thus, we may independently review the record
to determine if the issue Appellant raises is frivolous and to ascertain if there
are other, non-frivolous issues he may pursue on appeal.
Appellant challenges the discretionary aspects of his sentence. A
challenge to the discretionary aspects of a sentence must be considered a
petition for permission to appeal. See Commonwealth v. Coulverson, 34
A.3d 135, 142 (Pa. Super. 2011); see also Pa.R.A.P. 2119(f). This Court
conducts a four-part analysis to determine: (1) whether Appellant has timely
filed a notice of appeal; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence; (3) whether
Appellant’s brief has a fatal defect; and (4) whether there is a substantial
question that the sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S. § 9781(b). Commonwealth v. Leatherby,
116 A.3d 73, 83 (Pa. Super. 2015) (citation omitted).
In the instant case, Appellant has timely filed a notice of appeal.
However, Appellant did not preserve his challenge to the discretionary
aspects of his sentence at sentencing or in his motion to reconsider. This
constitutes a fatal defect. Commonwealth v. Cartrette, 83 A.3d 1030,
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3
Appellant has not filed a response to counsel’s Anders brief.
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1043 (Pa. Super. 2013) (en banc) (finding waiver of a challenge to
discretionary aspects of a sentence, in the context of an Anders brief,
where the appellant had not properly preserved the claim). Accordingly,
Appellant’s claim is waived on appeal. Id.Additionally, Appellant claims that the trial court’s sentence was harsh,
unreasonable, and a manifest abuse of discretion. Appellant’s Brief at 7-10.
Essentially, this is a bald claim of excessiveness, which does not establish a
substantial question. Commonwealth v. Malovich, 903 A.2d 1247, 1252
(Pa. Super. 2006) (citing Commonwealth v. Mouzon, 812 A.2d 626, 627
(Pa. 2002) (“Appellant must support his assertions by articulating the way in
which the court's actions violated the sentencing code”). Accordingly, on
this ground, too, Appellant’s claim does not warrant review. Id.Nevertheless, we briefly note the following. In fashioning an
appropriate sentence, “the court shall follow the general principle that the
sentence imposed should call for confinement that is consistent with the
protection of the public, the gravity of the offense as it relates to the impact
on the life of the victim and on the community, and the rehabilitative needs
of the defendant.” 42 Pa.C.S. § 9721(b).
Here, the court sentenced Appellant to one to two years of
incarceration followed by three years of probation. N.T. 5/17/2016, at 5.
The court (1) expressly prohibited Appellant from using drugs or consuming
alcohol, (2) ordered an alcohol assessment upon Appellant’s release, and (3)
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ordered a mental health evaluation. Viewed in tandem with the facts
presented to the court, Appellant’s individualized sentence established that
the court considered the factors required under 42 Pa.C.S. § 9721(b). At
the sentencing hearing, the court was apprised of Appellant’s addiction to
drugs, including heroin. N.T. 5/17/2016, at 3-5. The court was also aware
that Appellant had mental health issues and was a victim of sexual abuse.
Id. The court previously adjudicated a matter concerning Appellant earlier
that year, and considered Appellant’s presentence report.4 Id. At the time
of sentencing, Appellant’s counsel also specifically requested that Appellant
be placed in an intermediate punishment facility and the court lamented that
Appellant would be ineligible for these structured programs due to his sexual
assault adjudication.5 Id. The court then sentenced Appellant within the
sentencing guidelines’ standard range. See 204 Pa.Code § 303.16.
Accordingly, we discern no abuse of discretion. See, e.g., Commonwealth
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4
“[W]here the sentencing judge had the benefit of a presentence
investigation report, it will be presumed that he or she was aware of the
relevant information regarding the defendant's character and weighed those
considerations along with mitigating statutory factors.” Commonwealth v.
Clarke, 70 A.3d 1281, 1287 (Pa. Super. 2013).
5
In her brief, counsel also references Appellant’ potential to be placed in
intermediate punishment, an issue properly preserved for review in
Appellant’s motion to reconsider sentence. Appellant’s Brief at 5-6. This
issue is meritless as the record reflects that the court clearly considered the
possibility of placing Appellant in one of these programs but concluded that
Appellant was not an “eligible offender” pursuant to 42 Pa.C.S. § 9802. See
also 42 Pa.C.S. § 9721(a.1).
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v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (“[W]here a sentence is
within the standard range of the guidelines, Pennsylvania law views the
sentence as appropriate under the Sentencing Code.”).
We agree with Attorney De Vita that Appellant’s claim is frivolous. We
have independently reviewed the record, and find no other issues of
arguable merit that Appellant could pursue on appeal. Accordingly, we
affirm Appellant’s judgment of sentence and grant counsel’s petition to
withdraw.
Petition to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/21/2017
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