Com. v. McCormick, W.

J-S46018-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WILLIAM MCCORMICK
Appellant No. 345 MDA 2014
Appeal from the Judgment of Sentence January 14, 2014
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0000039-2012
BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 21, 2014
William McCormick appeals from his judgment of sentence, imposed in
the Court of Common Pleas of Lycoming County, after he violated the
rogram. Counsel has filed
a petition to withdraw pursuant to Anders, McClendon and Santiago.1
On February 16, 2012, McCormick entered a guilty plea to retail theft
and was sentenced to IP for a period of three years, the first six months of
which were to be served at the Lycoming County Prison and Pre-Release
____________________________________________
1
Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981); and Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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facility. After serving six months at the Lycoming County Prison, McCormick
was released on supervision. On November 14, 2013, the trial court held a
preliminary IP hearing after learning that McCormick had obtained new
criminal charges of retail theft, and had failed to report to the Adult
Probation Office as instructed. At this hearing, the court agreed to consider
allowing McCormick to enroll in either a halfway house or a rehabilitation
program if he was able to do so. However, McCormick could only be placed
on a waiting list at the American Rescue Workers due to the fact that he was
incarcerated on the new retail theft charges. On January 14, 2014, the
court held a final violation hearing and found that McCormick was guilty
beyond a reasonable doubt of the new charges of retail theft. The court re-
ceration with a consecutive
year of probation, to be supervised by the Pennsylvania Board of Probation
and Parole. On February 12, 2014, McCormick filed a timely notice of appeal
followed by a court-ordered concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b).
Anders brief, this Court may not review
the merits of the underlying issues without first passing on the request to
Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super.
2005). In order to withdraw pursuant to Anders and McClendon, counsel
must: (1) petition the Court for leave to withdraw, certifying that after a
thorough review of the record, counsel has concluded the issues to be raised
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are wholly frivolous; (2) file a brief referring to anything in the record that
might arguably support the appeal; and (3) furnish a copy of the brief to the
appellant and advise him of his right to obtain new counsel or file a pro se
brief to raise any additional points that the appellant deems worthy of
review. Commonwealth v. Hernandez, 783 A.2d 784, 786 (Pa. Super.
2001). In Santiago, the Pennsylvania Supreme Court altered the
requirements for withdrawal under Anders to mandate the inclusion of a
statement detailing reasons for concluding the appeal is frivolous.
of the record and concluded the appeal is wholly frivolous. Counsel supplied
McCormick with a copy of the brief and a letter explaining McC
to proceed pro se, or with newly-retained counsel, and to raise any other
issues he believes might have merit. Counsel also has submitted a brief,
setting out in neutral form a single issue of arguable merit. Finally, counsel
has explained, pursuant to the dictates of Santiago, why she believes the
issue to be frivolous. See Anders Brief, at 10-11. Thus, counsel has
substantially complied with the requirements of Anders, McClendon and
Santiago.
Counsel having satisfied the procedural requirements for withdrawal,
this Court must conduct its own review of the proceedings and render an
independent judgment as to whether the appeal is, in fact, wholly frivolous.
Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004). In her
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Anders brief, counsel raises the following issue: Whether the trial court
abused its discretion by imposing a manifestly excessive sentence.2
-settled that appeals of discretionary aspects of a
sentence are not reviewable as a matter of right. Before a challenge to the
sentence will be heard on the merits, an appellant, in order to invoke the
stateme
2119(f); Commonwealth v. Ladamus, 896 A.2d 592, 595 (Pa. Super.
2006). McCormick failed to submit a 2119(f) statement. However, in light
Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009) (citing
Commonwealth v. Hernandez, 783 A.2d 784, 787 (Pa. Super. 2001)
(Anders requires review of issues otherwise waived on appeal)).
Judicial review of the discretionary aspects of a judgment of sentence
is granted only upon a showing that there is a substantial question that the
sentence was inappropriate and contrary to the fundamental norms
underlying the Sentencing Code. Commonwealth v. Tuladziecki, 522
A.2d 17 (Pa. 1987). A su
____________________________________________
2
McCormick did not submit any additional claims for our review in response
Anders brief.
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either: (1) inconsistent with a specific provision in the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the sentencing
Commonwealth v. Brown, 741 A.2d 726, 735 (Pa. Super. 1999)
(en banc
adequately consider a mitigating circumstance when imposing [a] sentence
does not raise a substantial question sufficient to justify appellate review of
Commonwealth v. Ladamus, 896 A.2d 592,
595 (Pa. Super. 2006).
sentence is neither inconsistent with a specific provision of the Sentencing
Code nor contrary to the fundamental norms which underlie the sentencing
process. Although McCormick claims that the sentence imposed is
manifestly excessive, he does not claim that it is outside the maximum
sentence for the offense. In fact, McCormick
pled guilty . . . to Retail Theft, a felony of the third degree. The
statutory maximum for that offense is seven (7) years.
Correctional Institution with a consecutive year of probation,
which he received at his final IP violation hearing, is within the
maximum sentence.
raise a substantial question based on an inconsistency with the sentencing
code or the fundamental norms underlying the sentencing process.
that he had secured a place on a waiting list at the American Rescue
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Workers also does not raise a substantial question. A challenge to the trial
co
question. See Ladamus, 896 A.2d at 595. For the foregoing reasons,
trial court did not abuse its discretion in sentencing McCormick to one to two
Judgment of sentence affirmed; petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2014
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