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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                          Appellee

                     v.

JESSE N. MCNAMARA

                          Appellant                      No. 1854 EDA 2014


          Appeal from the Judgment of Sentence November 29, 2012
                In the Court of Common Pleas of Wayne County
             Criminal Division at No(s): CP-64-CR-0000380-2012
-------------------------------------------------------------------------------------

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                          Appellee

                     v.

JESSE N. MCNAMARA

                          Appellant                      No. 1855 EDA 2014


         Appeal from the Judgment of Sentence November 29, 2012
              In the Court of Common Pleas of Wayne County
            Criminal Division at No(s): CP-64-CR-0000278-2012


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                    FILED APRIL 06, 2015

      Jesse N. McNamara appeals, nunc pro tunc, from the judgments of

sentence both entered November 29, 2012, in the Wayne County Court of

Common Pleas, following her guilty pleas, in two separate cases, to charges

of, inter alia, driving under the influence of controlled substances (DUI) and
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identity theft.1 The trial court imposed an aggregate sentence of 36 to 78

months’ imprisonment. Contemporaneous with these appeals, in each case,

McNamara’s counsel has filed a petition to withdraw from representation and

an Anders brief.2         See Anders v. California, 386 U.S. 738 (1967);

Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).              Both Anders

briefs assert the trial court abused its discretion in failing to consider

mitigating factors before imposing the aggregated sentence.        Further, the

appeal at 1854 EDA 2014 (“Docket No. 380-2012”) also raises the trial

court’s decision to impose the sentence consecutively to the sentence

appealed at 1855 EDA 2014 (“Docket No. 278-2012”). For the reasons that

follow, we affirm the judgments of sentence, and grant counsel’s petitions to

withdraw.

        The procedural history underlying these appeals is as follows.        On

October 11, 2012, McNamara entered a guilty plea in two cases:             (1) at

Docket No. 278-2012, she pled guilty to DUI, driving while operating

privilege is suspended, possession of drug paraphernalia, and recklessly

endangering another person (REAP); and (2) at Docket No. 380-2012, she




____________________________________________


1
    75 Pa.C.S. § 3802(d)(1)(ii), and 18 Pa.C.S. § 4120(a), respectively.
2
  Because both appeals involved the aggregate sentence imposed on all of
the charges, we address the appeals in a single memorandum.




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pled guilty to one count of identity theft.3         McNamara was sentenced on

November      29, 2012,       to   an   aggregate   term   of 36   to   78   months’

imprisonment.       Specifically, at Docket No. 278-2012, the court imposed

consecutive sentences of two to six months for DUI, six to 12 months for

possession of paraphernalia, and 12 to 24 months for REAP.4 At Docket No.

380-2012, the court imposed a term of 16 to 36 months’ incarceration for

identity theft, which the court directed run consecutively to the sentence at

Docket No. 278-2012.         The trial court further ordered that the aggregate

sentence for both dockets would run concurrently to a sentence McNamara

was then serving on an unrelated matter at Docket No. 38-2011. The trial

court then “immediately paroled” McNamara from her prior sentence so that

she could begin serving her aggregate sentence in these cases.                 N.T.,

11/29/2012, at 11.

       McNamara filed a timely motion for reconsideration of sentence,

contending the trial court failed to properly weigh certain mitigating factors

which would have justified a sentence below the guideline range. The trial

court never ruled on the motion for reconsideration, and no direct appeal

was filed.
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3
 75 Pa.C.S. §§ 3802(d)(1)(ii) and 1543(a); 35 P.S. 780-113(a)(32); and 18
Pa.C.S. §§ 2705 and 4120(a), respectively.
4
 McNamara was ordered to pay a $200 fine for the charge of driving while
operating privilege is suspended.




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        On September 12, 2013, McNamara filed a pro se PCRA5 petition.

Counsel was appointed, and filed an amended petition on January 24, 2014,

asserting, inter alia, trial counsel’s ineffectiveness for failing to file a

requested direct appeal. Following a hearing conducted on May 5, 2014, the

trial court entered an order reinstating McNamara’s direct appeal rights,

nunc pro tunc, and appointing Ashley G. Zimmerman, Esquire, to represent

her on appeal.      Thereafter, Zimmerman petitioned to withdraw as counsel

due to a conflict of interest. On May 28, 2014, the trial court granted her

petition to withdraw, appointed Steven E. Burlein, Esquire as counsel, and

provided him with an additional 30 days to file a nunc pro tunc notice of

appeal. This timely appeal followed.6

        When counsel files a petition to withdraw and accompanying Anders

brief, we must first examine the request to withdraw before addressing any

of the substantive issues raised on appeal. Commonwealth v. Goodwin,

928 A.2d 287, 290 (Pa. Super. 2007) (en banc).        Here, our review of the

record reveals counsel has complied with the requirements for withdrawal

outlined in Anders, supra, and its progeny. Specifically, at each appellate

docket, counsel filed a petition for leave to withdraw, in which he states his


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5
    Post-Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.
6
 On July 18, 2014, in response to a directive by the trial court, Burlein filed
a “Statement of Intent to File an Anders/McClendon Brief” pursuant to
Pa.R.A.P. 1925(c)(4).



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belief that the appeal is frivolous, filed an Anders brief pursuant to the

dictates of Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009),

furnished a copy of the Anders brief to McNamara and advised McNamara of

her right to retain new counsel or proceed pro se.      Commonwealth v.

Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc).          Further,

McNamara has filed a pro se response to counsel’s Anders briefs, in which

she raises another sentencing claim.      Accordingly, we will proceed to

examine the record and make an independent determination of whether the

appeal is wholly frivolous.

      The issues identified in counsel’s     Anders briefs challenge the

discretionary aspects of McNamara’s sentences.         “A challenge to the

discretionary aspects of a sentence must be considered a petition for

permission to appeal, as the right to pursue such a claim is not absolute.”

Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa. Super. 2007) (citation

omitted).    To reach the merits of a discretionary issue, this Court must

determine:
      (1) whether the appeal is timely; (2) whether Appellant
      preserved his issue; (3) whether Appellant’s brief includes a
      concise statement of the reasons relied upon for allowance of
      appeal with respect to the discretionary aspects of sentence; and
      (4) whether the concise statement raises a substantial question
      that the sentence is appropriate under the sentencing code.

Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)

(citation omitted), appeal denied, 81 A.3d 75 (Pa. 2013).




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     McNamara complied with the procedural requirements for this appeal

by filing a post-sentence motion for reconsideration of sentence and a timely

notice of appeal.     Moreover, counsel included in the Anders brief a

statement of reasons relied upon for appeal pursuant to Commonwealth v.

Tuladziecki, 522 A.2d 17 (Pa. 1987), and Pa.R.A.P. 2119(f). Therefore, we

must consider whether McNamara raised a substantial question justifying our

review.

     A substantial question exists when an appellant sets forth “a colorable

argument that the sentence imposed is either inconsistent with a specific

provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)

(citation omitted).   Here, McNamara contends the trial court failed to

consider mitigating circumstances when imposing an aggregate sentence of

36 to 78 months’ imprisonment, and the court erred in directing the

sentence at Docket No. 380-2012 run consecutively to the sentence at trial

Docket No. 278-2012.

     Preliminarily, we note that McNamara failed to challenge the court’s

imposition of consecutive sentences in her motion for reconsideration.

Accordingly, that claim is waived for our review. See Commonwealth v.

Mann, 820 A.2d 788, 794 (Pa. Super. 2003) (holding appellant’s failure to

raise “the specific claim regarding the sentencing court’s alleged failure to


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state the reasons for his sentence on the record” either at sentencing or in

his post sentence motion waives the claim for appellate review), appeal

denied, 831 A.2d 599 (Pa. 2003).

       Furthermore, a claim that the trial court failed to consider mitigating

circumstances does not raise a substantial question justifying our review.

See Commonwealth v. Rhoades, 8 A.3d 912, 918-819 (Pa. Super. 2010)

(“[A]n allegation that the sentencing court failed to consider mitigating

factors generally does not raise a substantial question for our review.”),

appeal denied, 25 A.3d 328 (Pa. 2011), cert. denied, 132 S.Ct. 1746 (U.S.

2012).    Where, as here, a trial court had the benefit of a pre-sentence

investigation report, we will presume the trial court was “aware of all

appropriate sentencing factors and considerations.”      Commonwealth v.

Downing, 990 A.2d 788, 794 (Pa. Super. 2010) (citation omitted).

Accordingly, McNamara is entitled to no relief on the issues identified in

counsel’s Anders briefs.

       In her pro se response, McNamara raises an additional sentencing

claim, namely, that she was not given proper credit for time served. 7      In

support of this position, McNamara states that she began serving her prior

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7
  “[A] challenge to the trial court’s failure to award credit for time spent in
custody prior to sentencing involves the legality of sentence[.]”
Commonwealth v. Fowler, 930 A.2d 586, 595 (Pa. Super. 2007) (citation
omitted), appeal denied, 944 A.2d 756 (Pa. 2008).




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sentence, for Docket No. 38-2011, on April 4, 2012. Therefore, when she

was sentenced on November 29, 2012, for the present charges, she had

already served 239 days of that prior sentence.     Further, she claims that

when the trial court directed the sentence for her present charges run

concurrently to the sentence at Docket No. 38-2011, she should have

received credit for the 239 days she had already served on the 2011 charges

because her “time [for the present charges] should have started on April 4th

2012 when [she] began serving [her] time for no. 38-2011.”           Pro Se

Response to Anders brief, 10/26/2014, at 1-2. However, she argues, the

prison records reflect her “start time” as November 29, 2012. Id. at 1.

      McNamara is mistaken. Pennsylvania Rule of Criminal Procedure 705

provides, in relevant part:

      (B) When more than one sentence is imposed at the same time
      on a defendant, or when a sentence is imposed on a
      defendant who is sentenced for another offense, the judge
      shall state whether the sentences shall run concurrently or
      consecutively. If the sentence is to run concurrently, the
      sentence shall commence from the date of imposition
      unless otherwise ordered by the judge.

Pa.R.Crim.P. 705(B) (emphasis supplied). Therefore, regardless of the fact

that McNamara’s 2012 sentences were ordered to run concurrently with the

2011 sentence she was then serving, her 2012 sentences did not commence

until the date they were imposed, November 29, 2012. Moreover, our

review of the sentencing transcript reveals the trial court intended the 2012

sentences to begin running on the date they were imposed, and not



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retroactively to April 4, 2012.8           See N.T., 11/29/2012, at 11 (“You’re

immediately paroled from your sentence to number 38-2011 to begin

serving this sentence. There’s no credit time towards this particular

sentence, and you’re not RRI eligible.”) (emphasis supplied). Accordingly,

no relief is warranted on this claim.

       Because we agree with counsel’s assessment that McNamara’s appeals

are wholly frivolous, we affirm the judgments of sentence and grant

counsel’s petitions to withdraw.

       Judgments of sentence affirmed.           Petitions to withdraw as counsel

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/2015




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8
  Indeed, McNamara was not even charged with the instant offenses until
July 3, 2012 (Docket No. 278-2012) and September 19, 2012 (Docket No.
380-2012).



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