J-S44038-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ARCHIE MCLEAN,                             :
                                               :
                       Appellant               :      No. 1327 EDA 2017

             Appeal from the Judgment of Sentence August 9, 2013
              in the Court of Common Pleas of Philadelphia County,
              Criminal Division at No(s): CP-51-CR-0000309-2009

BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                         FILED NOVEMBER 20, 2018

        Archie McLean (“McLean”) appeals from the judgment of sentence

imposed following the revocation of his probation.         Additionally, McLean’s

counsel, Todd M. Mosser, Esquire (“Attorney Mosser”), has filed a Petition to

Withdraw as counsel and an accompanying brief pursuant to Anders v.

California, 386 U.S. 738, 744 (1967). We grant Attorney Mosser’s Petition

to Withdraw and affirm McLean’s judgment of sentence.

        On July 28, 2009, McLean entered a negotiated guilty plea to firearms

not to be carried without a license, and possession of a firearm with

manufacturer number altered at docket number 309 of 2009 (“309-2009”).1

In exchange for his plea, the remaining charges for receiving stolen property,



____________________________________________


1   See 18 Pa.C.S.A. §§ 6106(a)(1), 6110.2.
J-S44038-18


alter/obliterate mark of identification, and carrying firearms on public streets

in Philadelphia were nolle prossed.            On December 15, 2009, McLean was

sentenced to an aggregate term of 22 days to 23 months in prison, followed

by 3 years of probation. McLean did not file any post-sentence motions or a

direct appeal.

        McLean subsequently pled guilty to homicide by vehicle and driving

under the influence at docket number 14071 of 2012 (“14071-2012”). On

June 13, 2013, the trial court sentenced McLean to an aggregate term of 6 to

12 years in prison. The trial court conducted a Gagnon II2 hearing on August

9, 2013, and found McLean to be in violation of his probation at 309-2009.

The trial court revoked McLean’s probation and resentenced him to an

aggregate term of 3½ to 7 years in prison, to be served consecutively to the

sentence imposed at 14071-2012.

        On May 29, 2014, McLean, pro se, filed a Petition pursuant to the Post

Conviction Relief Act (“PCRA”) at docket number 309-2009. See 42 Pa.C.S.A.

§§ 9541-9546.        The trial court appointed Attorney Mosser as McLean’s

counsel.3     Attorney Mosser filed an Amended PCRA Petition, seeking

reinstatement of McLean’s rights to file a post sentence motion and a direct

appeal, nunc pro tunc.         On March 30, 2017, the PCRA court reinstated


____________________________________________


2   Gagnon v. Scarpelli, 411 U.S. 778 (1973).

3 McLean subsequently filed two additional pro se PCRA Petitions, making
substantially the same claims.

                                           -2-
J-S44038-18


McLean’s direct appeal rights, but denied his request to file a post-sentence

motion.

       On April 12, 2017, McLean, via Attorney Mosser, filed a Notice of appeal,

nunc pro tunc.      The trial court ordered McLean to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal. In response, Attorney

Mosser filed a Pa.R.A.P. 1925(c)(4) Statement of intent to file an Anders brief

in lieu of a Rule 1925(b) concise statement.4 Attorney Mosser subsequently

filed an Anders Brief and a Petition to Withdraw as Counsel. McLean neither

filed a pro se brief, nor retained alternate counsel for this appeal.

       Before addressing McLean’s issues on appeal, we must determine

whether Attorney Mosser has complied with the dictates of Anders and its

progeny     in    petitioning     to   withdraw   from   representation.     See

Commonwealth v. Mitchell, 986 A.2d 1241, 1244 n.2 (Pa. Super. 2009)

(stating that “[w]hen presented with an Anders brief, this Court may not

review the merits of the underlying issues without first passing on the request

to withdraw.”). Pursuant to Anders, when counsel believes that an appeal is

frivolous and wishes to withdraw from representation, he or she must

       (1) petition the court for leave to withdraw stating that after
       making a conscientious examination of the record and
       interviewing the defendant, counsel has determined the appeal
       would be frivolous, (2) file a brief referring to any issues in the
       record of arguable merit, and (3) furnish a copy of the brief to
____________________________________________


4This Court dismissed McLean’s appeal on November 2, 2017, due to Attorney
Mosser’s failure to file a Brief. On November 9, 2017, McLean, via Attorney
Mosser, filed a Request to Reinstate his appeal, which this Court granted.

                                           -3-
J-S44038-18


     defendant and advise him of his right to retain new counsel or to
     raise any additional points that he deems worthy of the court’s
     attention. The determination of whether the appeal is frivolous
     remains with the court.

Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012) (citation

omitted).

     Additionally, the Pennsylvania Supreme Court has explained that a

proper Anders brief must

     (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) 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.

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

     In the instant case, our review of the Anders Brief and the Petition to

Withdraw reveals that Attorney Mosser has substantially complied with each

of the requirements of Anders/Santiago. See Commonwealth v. Wrecks,

934 A.2d 1287, 1290 (Pa. Super. 2007) (stating that counsel must

substantially comply with the requirements of Anders).       Attorney Mosser

indicates that he has made a conscientious examination of the record and

determined that an appeal would be frivolous.     Further, Attorney Mosser’s

Anders Brief comports with the requirements set forth by the Supreme Court

of Pennsylvania in Santiago. Finally, Attorney Mosser provided McLean with

a copy of the Anders Brief and advised him of his rights to retain new counsel


                                    -4-
J-S44038-18


or to raise any additional points deemed worthy of the Court’s attention. Thus,

Attorney Mosser has complied with the procedural requirements for

withdrawing from representation. We next examine the record and make an

independent determination of whether McLean’s appeal is, in fact, wholly

frivolous.

      Initially, we note that

      [o]ur scope of review in an appeal following a sentence imposed
      after probation revocation is limited to the validity of the
      revocation proceedings and the legality of the judgment of
      sentence. We further note that the imposition of sentence
      following the revocation of probation is vested within the sound
      discretion of the trial court, which, absent an abuse of that
      discretion, will not be disturbed on appeal.

Commonwealth v. Finnecy, 135 A.3d 1028, 1031 (Pa. Super. 2016)

(citations, quotation marks and brackets omitted).

      In his first issue, McLean argues that the Commonwealth failed to

present sufficient evidence to establish that he violated his probation. See

Anders Brief at 8-9.

             A challenge to the sufficiency of the evidence is a question
      of law subject to plenary review. We must determine whether the
      evidence admitted at [the probation revocation hearing] and all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the Commonwealth as the verdict winner, is
      sufficient to support all elements of the offenses. A reviewing
      court may not weigh the evidence or substitute its judgment for
      that of the [fact-finder].

            Revocation of a probation sentence is a matter committed
      to the sound discretion of the trial court[,] and that court’s
      decision will not be disturbed on appeal in the absence of an error
      of law or an abuse of discretion. When assessing whether to
      revoke probation, the trial court must balance the interests of

                                     -5-
J-S44038-18


      society in preventing future criminal conduct by the defendant
      against the possibility of rehabilitating the defendant outside of
      prison. In order to uphold a revocation of probation, the
      Commonwealth must show by a preponderance of the evidence
      that a defendant violated his probation. The reason for revocation
      of probation need not necessarily be the commission of or
      conviction for subsequent criminal conduct. … A probation
      violation is established whenever it is shown that the conduct of
      the probationer indicates the probation has proven to have been
      an ineffective vehicle to accomplish rehabilitation and not
      sufficient to deter against future antisocial conduct.

Commonwealth v. Colon, 102 A.3d 1033, 1041 (Pa. Super. 2014) (citations,

quotation marks and brackets omitted).

      Here, while on probation at 309-2009, McLean entered an open guilty

plea to homicide by vehicle and driving under the influence at 14071-2012.

See Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa. Super. 2008)

(stating that a “[c]onviction of a new crime is a sufficient basis for a court to

revoke a sentence of probation.”). Accordingly, the Commonwealth produced

sufficient evidence to prove that he violated his probation, and McLean’s first

issue is wholly frivolous.

      In his second issue, McLean contends that the trial court imposed an

illegal sentence by sentencing him on a charge that was nolle prossed by the




                                      -6-
J-S44038-18


Commonwealth in exchange for his original guilty plea. Anders Brief at 9-10.

       “When the legality of a sentence is at issue on appeal, our standard of

review is de novo and our scope of review is plenary.” Commonwealth v.

Mendozajr, 71 A.3d 1023, 1027 (Pa. Super. 2013) (citation and quotation

marks omitted). “An illegal sentence must be vacated.” Commonwealth v.

Mears, 972 A.2d 1210, 1211 (Pa. Super. 2009) (citation omitted).

       Here, McLean originally pled guilty to firearms not to be carried without

a license and possession of a firearm with manufacturer number altered.

Following the revocation of his probation, he was resentenced on the charge

for firearms not to be carried without a license, which charge was not nolle

prossed. Accordingly, the trial court did not sentence McLean on nolle prossed

charges, and McLean’s second claim on appeal is wholly frivolous.5




____________________________________________


5 To the extent that McLean challenges the discretionary aspects of his
sentence, see Anders Brief at 9-10, said claim is waived based on McLean’s
failure to raise it with the trial court during the sentencing proceedings or in a
post-sentence motion. See Commonwealth v. Mann, 820 A.2d 788, 794
(Pa. Super. 2003) (stating that “issues challenging the discretionary aspects
of sentencing must be raised in a post-sentence motion or by raising the claim
during the sentencing proceedings. Absent such efforts, an objection to a
discretionary aspect of a sentence is waived.” (citation omitted)).
Nevertheless, upon resentencing, the trial court has all options available to it
as were available at the initial sentencing, and the trial court’s sentence fell
within the statutory maximum. See 42 Pa.C.S.A. § 9771. There is no
evidence from the record to demonstrate that the trial court abused its
discretion in imposing McLean’s sentence.

                                           -7-
J-S44038-18


     Finally, our independent review discloses no other non-frivolous claims

that McLean could raise on appeal. Accordingly, we grant Attorney Mosser’s

Petition to Withdraw, and affirm McLean’s judgment of sentence.

     Petition to Withdraw granted. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/18




                                   -8-
