Com. v. McCormick, W.

• Court: Superior Court of Pennsylvania
• Decided: August 21, 2014
• Docket: 345 MDA 2014
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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). J-S46018-14

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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