Com. v. McLean, J. ( 2017 )

J-S61007-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSEPH MCLEAN, JR.
Appellant No. 292 EDA 2017
Appeal from the Judgment of Sentence December 8, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005524-2013,
CP-51-CR-0011809-2010, CP-51-CR-0104301-2005,
CP-51-CR-1204701-2005
BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 10, 2017
Joseph McLean, Jr., appeals from his judgment of sentence imposed in
the Court of Common Pleas of Philadelphia County following a violation of
probation and parole hearing on four consolidated cases. Counsel has
petitioned this Court to withdraw from his representation of McLean pursuant
to Anders, McClendon and Santiago.1 Upon review, we affirm McLean’s
judgment of sentence and grant counsel’s petition to withdraw.
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* Retired Senior Judge assigned to the Superior Court.
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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Since 2005, McLean has been convicted of numerous drug and
firearms offenses in several criminal cases. He has also been found to be in
violation of his resulting parole and probation on multiple occasions. Most
recently, McLean appeared before the Honorable Glenn B. Bronson for a
consolidated violation of probation and parole hearing and was found to be
in technical violation after several positive drug tests. Defense counsel
acknowledged McLean’s drug and mental health problems and requested
that the court sentence him to his back-time on the cases where he was on
parole, and immediately parole him to a dual-diagnosis treatment center.
Judge Bronson agreed and sentenced McLean to serve the remainder of his
back-time, 11½ to 23 months, with immediate parole to treatment, plus five
years’ concurrent probation. McLean did not file post-sentence motions.
This timely appeal follows, in which counsel has filed a motion to withdraw
and Anders brief.
In order to withdraw pursuant to Anders, 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 are wholly
frivolous; (2) file a brief referring to anything in the record that might
arguably support an 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 raising any additional points that the appellant deems worthy of review.
Commonwealth v. Hernandez, 783 A.2d 784, 786 (Pa. Super. 2001). In
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Santiago, supra, the Pennsylvania Supreme Court held that, in order to
withdraw under Anders, counsel must also state his reasons for concluding
his client’s appeal is frivolous.
Instantly, counsel’s petition states that he has examined the record
and concluded the appeal is wholly frivolous. Counsel indicates that he
supplied McLean with a copy of the brief and a letter explaining his right to
proceed pro se,2 or with newly-retained counsel, and to raise any other
issues he believes might have merit. Counsel has also submitted a brief,
setting out in neutral form the sole issue counsel identified that would
arguably support an appeal and, pursuant to the dictates of Santiago,
explains why he believes the claim to be frivolous.
Counsel has satisfied the procedural requirements for withdrawal.
Accordingly, this Court must now 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).
The sole issue identified by counsel as possibly supporting an appeal is
that McLean’s sentence was excessive. This claim implicates the
discretionary aspects of McLean’s sentence. Such a claim does not entitle an
appellant to review as a matter of right. Commonwealth v. Swope, 123
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2McLean has not submitted any additional or supplemental filings to this
Court.
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A.3d 333, 337 (Pa. Super. 2015). Rather, before this Court can address
such a discretionary challenge, an appellant must comply with the following
requirements:
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test: (1) whether appellant has filed a timely notice of
appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was
properly preserved at sentencing or in a motion to reconsider
and modify sentence, see Pa.R.Crim.P. 720; (3) whether
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4)
whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing Code.
Id., quoting Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.
2011).
Here, McLean did not file a post-sentence motion raising his
sentencing claim. Accordingly, this claim is waived. See Commonwealth
v. Griffin, 65 A.3d 932, 936 (Pa. Super. 2013) (challenges to discretionary
aspects of sentence waived if not raised during sentencing or in post-
sentence motions).
Even if this claim were not waived, it would garner McLean no relief. A
sentencing court’s determination will not be disturbed absent an abuse of
discretion. Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007). This court
will only find an abuse of discretion where the judgment exercised was
manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.
Id. (citations omitted). Upon revoking a defendant’s probation and
imposing a new sentence, a court has available to it essentially all the
sentencing alternatives that existed at the time of the initial sentencing.
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Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008), citing
42 Pa.C.S.A. § 9771(b). Thus, if the original offense was punishable by total
confinement, such a penalty is available to a revocation court if it finds that:
(1) the defendant has been convicted of another crime; (2) the defendant’s
conduct indicates a likelihood of future offenses; or (3) such a sentence is
necessary to vindicate the court’s authority. 42 Pa.C.S.A. § 9771(c).
Here, we can discern no abuse of discretion where the court imposed
the very sentence requested by McLean. The sentencing judge was very
familiar with McLean, who had appeared before him on three prior occasions.
For over a decade, McLean had consistently violated his probation by selling
drugs, carrying firearms and failing drug tests.3 The court’s sentence could
be described as lenient under the circumstances, and provided McLean with
an opportunity to address his obvious need for drug treatment. Having
concluded that a sentence of total confinement was necessary to vindicate
the authority of the court, see N.T. VOP Hearing, 12/8/16, at 9, the court
did not abuse its discretion in sentencing McLean to 11½ to 23 months’
imprisonment, with immediate parole to a treatment facility, plus five years
of probation, as requested by McLean himself.
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3 At the VOP hearing on December 8, 2016, Judge Bronson noted, and
McLean did not dispute, that McLean had “repeated positive drug tests,
which [sic] he repeatedly continues to test positive for marijuana, since May
of this year every month, and tested positive for opiates back on May 9 of
this year.” N.T. VOP Hearing, 12/8/16, at 2.
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Judgment of sentence affirmed. Petition to withdraw granted.
Judge Ransom joins the Memorandum.
Judge Platt concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date:10/10/2017
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