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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
J-S94020-16


        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
____________________________________________


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).



                                           -2-
J-S94020-16



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;



                                    -3-
J-S94020-16


      (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

                                    -4-
J-S94020-16


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,

____________________________________________


3
    Appellant has not filed a response to counsel’s Anders brief.



                                           -5-
J-S94020-16


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)


                                     -6-
J-S94020-16


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

____________________________________________


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).



                                           -7-
J-S94020-16


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




                                   -8-
