Com. v. McLean, A. ( 2018 )

J-S44038-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ARCHIE MCLEAN, :
:
Appellant : No. 1327 EDA 2017
Appeal from the Judgment of Sentence August 9, 2013
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0000309-2009
BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 20, 2018
Archie McLean (“McLean”) appeals from the judgment of sentence
imposed following the revocation of his probation. Additionally, McLean’s
counsel, Todd M. Mosser, Esquire (“Attorney Mosser”), has filed a Petition to
Withdraw as counsel and an accompanying brief pursuant to Anders v.
California, 386 U.S. 738, 744 (1967). We grant Attorney Mosser’s Petition
to Withdraw and affirm McLean’s judgment of sentence.
On July 28, 2009, McLean entered a negotiated guilty plea to firearms
not to be carried without a license, and possession of a firearm with
manufacturer number altered at docket number 309 of 2009 (“309-2009”).1
In exchange for his plea, the remaining charges for receiving stolen property,
____________________________________________
1 See 18 Pa.C.S.A. §§ 6106(a)(1), 6110.2.
J-S44038-18
alter/obliterate mark of identification, and carrying firearms on public streets
in Philadelphia were nolle prossed. On December 15, 2009, McLean was
sentenced to an aggregate term of 22 days to 23 months in prison, followed
by 3 years of probation. McLean did not file any post-sentence motions or a
direct appeal.
McLean subsequently pled guilty to homicide by vehicle and driving
under the influence at docket number 14071 of 2012 (“14071-2012”). On
June 13, 2013, the trial court sentenced McLean to an aggregate term of 6 to
12 years in prison. The trial court conducted a Gagnon II2 hearing on August
9, 2013, and found McLean to be in violation of his probation at 309-2009.
The trial court revoked McLean’s probation and resentenced him to an
aggregate term of 3½ to 7 years in prison, to be served consecutively to the
sentence imposed at 14071-2012.
On May 29, 2014, McLean, pro se, filed a Petition pursuant to the Post
Conviction Relief Act (“PCRA”) at docket number 309-2009. See 42 Pa.C.S.A.
§§ 9541-9546. The trial court appointed Attorney Mosser as McLean’s
counsel.3 Attorney Mosser filed an Amended PCRA Petition, seeking
reinstatement of McLean’s rights to file a post sentence motion and a direct
appeal, nunc pro tunc. On March 30, 2017, the PCRA court reinstated
____________________________________________
2 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
3 McLean subsequently filed two additional pro se PCRA Petitions, making
substantially the same claims.
-2-
J-S44038-18
McLean’s direct appeal rights, but denied his request to file a post-sentence
motion.
On April 12, 2017, McLean, via Attorney Mosser, filed a Notice of appeal,
nunc pro tunc. The trial court ordered McLean to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. In response, Attorney
Mosser filed a Pa.R.A.P. 1925(c)(4) Statement of intent to file an Anders brief
in lieu of a Rule 1925(b) concise statement.4 Attorney Mosser subsequently
filed an Anders Brief and a Petition to Withdraw as Counsel. McLean neither
filed a pro se brief, nor retained alternate counsel for this appeal.
Before addressing McLean’s issues on appeal, we must determine
whether Attorney Mosser has complied with the dictates of Anders and its
progeny in petitioning to withdraw from representation. See
Commonwealth v. Mitchell, 986 A.2d 1241, 1244 n.2 (Pa. Super. 2009)
(stating that “[w]hen presented with an Anders brief, this Court may not
review the merits of the underlying issues without first passing on the request
to withdraw.”). Pursuant to Anders, when counsel believes that an appeal is
frivolous and wishes to withdraw from representation, he or she must
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record and
interviewing the defendant, counsel has determined the appeal
would be frivolous, (2) file a brief referring to any issues in the
record of arguable merit, and (3) furnish a copy of the brief to
____________________________________________
4This Court dismissed McLean’s appeal on November 2, 2017, due to Attorney
Mosser’s failure to file a Brief. On November 9, 2017, McLean, via Attorney
Mosser, filed a Request to Reinstate his appeal, which this Court granted.
-3-
J-S44038-18
defendant and advise him of his right to retain new counsel or to
raise any additional points that he deems worthy of the court’s
attention. The determination of whether the appeal is frivolous
remains with the court.
Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012) (citation
omitted).
Additionally, the Pennsylvania Supreme Court has explained that a
proper Anders brief must
(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; (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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
In the instant case, our review of the Anders Brief and the Petition to
Withdraw reveals that Attorney Mosser has substantially complied with each
of the requirements of Anders/Santiago. See Commonwealth v. Wrecks,
934 A.2d 1287, 1290 (Pa. Super. 2007) (stating that counsel must
substantially comply with the requirements of Anders). Attorney Mosser
indicates that he has made a conscientious examination of the record and
determined that an appeal would be frivolous. Further, Attorney Mosser’s
Anders Brief comports with the requirements set forth by the Supreme Court
of Pennsylvania in Santiago. Finally, Attorney Mosser provided McLean with
a copy of the Anders Brief and advised him of his rights to retain new counsel
-4-
J-S44038-18
or to raise any additional points deemed worthy of the Court’s attention. Thus,
Attorney Mosser has complied with the procedural requirements for
withdrawing from representation. We next examine the record and make an
independent determination of whether McLean’s appeal is, in fact, wholly
frivolous.
Initially, we note that
[o]ur scope of review in an appeal following a sentence imposed
after probation revocation is limited to the validity of the
revocation proceedings and the legality of the judgment of
sentence. We further note that the imposition of sentence
following the revocation of probation is vested within the sound
discretion of the trial court, which, absent an abuse of that
discretion, will not be disturbed on appeal.
Commonwealth v. Finnecy, 135 A.3d 1028, 1031 (Pa. Super. 2016)
(citations, quotation marks and brackets omitted).
In his first issue, McLean argues that the Commonwealth failed to
present sufficient evidence to establish that he violated his probation. See
Anders Brief at 8-9.
A challenge to the sufficiency of the evidence is a question
of law subject to plenary review. We must determine whether the
evidence admitted at [the probation revocation hearing] and all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the Commonwealth as the verdict winner, is
sufficient to support all elements of the offenses. A reviewing
court may not weigh the evidence or substitute its judgment for
that of the [fact-finder].
Revocation of a probation sentence is a matter committed
to the sound discretion of the trial court[,] and that court’s
decision will not be disturbed on appeal in the absence of an error
of law or an abuse of discretion. When assessing whether to
revoke probation, the trial court must balance the interests of
-5-
J-S44038-18
society in preventing future criminal conduct by the defendant
against the possibility of rehabilitating the defendant outside of
prison. In order to uphold a revocation of probation, the
Commonwealth must show by a preponderance of the evidence
that a defendant violated his probation. The reason for revocation
of probation need not necessarily be the commission of or
conviction for subsequent criminal conduct. … A probation
violation is established whenever it is shown that the conduct of
the probationer indicates the probation has proven to have been
an ineffective vehicle to accomplish rehabilitation and not
sufficient to deter against future antisocial conduct.
Commonwealth v. Colon, 102 A.3d 1033, 1041 (Pa. Super. 2014) (citations,
quotation marks and brackets omitted).
Here, while on probation at 309-2009, McLean entered an open guilty
plea to homicide by vehicle and driving under the influence at 14071-2012.
See Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008)
(stating that a “[c]onviction of a new crime is a sufficient basis for a court to
revoke a sentence of probation.”). Accordingly, the Commonwealth produced
sufficient evidence to prove that he violated his probation, and McLean’s first
issue is wholly frivolous.
In his second issue, McLean contends that the trial court imposed an
illegal sentence by sentencing him on a charge that was nolle prossed by the
-6-
J-S44038-18
Commonwealth in exchange for his original guilty plea. Anders Brief at 9-10.
“When the legality of a sentence is at issue on appeal, our standard of
review is de novo and our scope of review is plenary.” Commonwealth v.
Mendozajr, 71 A.3d 1023, 1027 (Pa. Super. 2013) (citation and quotation
marks omitted). “An illegal sentence must be vacated.” Commonwealth v.
Mears, 972 A.2d 1210, 1211 (Pa. Super. 2009) (citation omitted).
Here, McLean originally pled guilty to firearms not to be carried without
a license and possession of a firearm with manufacturer number altered.
Following the revocation of his probation, he was resentenced on the charge
for firearms not to be carried without a license, which charge was not nolle
prossed. Accordingly, the trial court did not sentence McLean on nolle prossed
charges, and McLean’s second claim on appeal is wholly frivolous.5
____________________________________________
5 To the extent that McLean challenges the discretionary aspects of his
sentence, see Anders Brief at 9-10, said claim is waived based on McLean’s
failure to raise it with the trial court during the sentencing proceedings or in a
post-sentence motion. See Commonwealth v. Mann, 820 A.2d 788, 794
(Pa. Super. 2003) (stating that “issues challenging the discretionary aspects
of sentencing must be raised in a post-sentence motion or by raising the claim
during the sentencing proceedings. Absent such efforts, an objection to a
discretionary aspect of a sentence is waived.” (citation omitted)).
Nevertheless, upon resentencing, the trial court has all options available to it
as were available at the initial sentencing, and the trial court’s sentence fell
within the statutory maximum. See 42 Pa.C.S.A. § 9771. There is no
evidence from the record to demonstrate that the trial court abused its
discretion in imposing McLean’s sentence.
-7-
J-S44038-18
Finally, our independent review discloses no other non-frivolous claims
that McLean could raise on appeal. Accordingly, we grant Attorney Mosser’s
Petition to Withdraw, and affirm McLean’s judgment of sentence.
Petition to Withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/20/18
-8-