J-S31002-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

TARO CURTIS MCCRAY

                        Appellant                   No. 102 WDA 2016


        Appeal from the Judgment of Sentence December 15, 2015
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0001632-2013
                                      CP-02-CR-0007040-2010
                                      CP-02-CR-0016734-2014


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

MEMORANDUM BY PANELLA, J.                              FILED JUNE 5, 2017

      Appellant, Taro Curtis McCray, appeals from the judgment of sentence

entered on December 15, 2015, following the revocation of his probation in

the Court of Common Pleas of Allegheny County. Additionally, McCray’s

court-appointed counsel, Christine M. Selden, Esquire, has filed a petition to

withdraw as counsel pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We

affirm the judgment of sentence and grant counsel’s petition to withdraw.

      Assuming the parties’ familiarity with the facts and the procedural

history, we elaborate only as necessary to explain our decision. On

December 16, 2014, McCray entered a guilty plea to receiving stolen

property and received a sentence of 18 months’ probation. At that time,
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McCray was on probation for, among others, a conviction for criminal

attempt to commit burglary.

      Probation officers, however, “took no action on the violation” as

McCray “continued to do well,” but “then things started to slip.” N.T.,

Probation Violation Hearing, 9/15/15, at 3-4. In February 2015, he admitted

cocaine use (which he later denied) and was taken into custody. Then in

March 2015, probation officers placed him in the Renewal Program. That

placement lasted until June 2015, when he was removed and taken back to

jail for, among other violations, possession of contraband. After a Gagnon

II hearing, the revocation court found that McCray violated the terms of his

probation. The court later sentenced McCray to a period of incarceration of

18 to 36 months, followed by two years of probation. This timely appeal

follows.

      Attorney Selden has complied with the mandated procedure for

withdrawing as counsel. See Santiago, 978 A.2d at 361 (articulating

Anders requirements); Commonwealth v. Daniels, 999 A.2d 590, 594

(Pa. Super. 2010) (providing that counsel must inform client by letter of

rights to proceed once counsel moves to withdraw and append a copy of the

letter to the petition). McCray has not filed a response to counsel’s petition

to withdraw.

      Counsel has identified just one issue in the Anders brief that McCray

believes entitle him to relief: that his sentence of 18 to 36 months is

excessive. This raises a discretionary aspects of sentencing claim. Our

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“scope of review in an appeal from a revocation sentencing includes

discretionary sentencing challenges.” Commonwealth v. Cartrette, 83

A.3d 1030, 1034 (Pa. Super. 2013) (en banc).

      McCray, however, did not preserve this issue in the lower court. See

Commonwealth v. Shugars, 895 A.2d 1270, 1273-1274 (Pa. Super. 2006)

(explaining necessity to preserve discretionary aspects of sentencing

claims). Ordinarily, we would find this sentencing claim waived. But in light

of counsel’s petition to withdraw, we must address McCray’s contention. See

Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009) (stating

that where counsel files an Anders brief, this Court will review discretionary

aspects of sentencing claims that were otherwise not properly preserved).

      An appellant challenging the discretionary aspects of the sentence

imposed must not only have preserved the claim, but must also “present a

substantial question as to the inappropriateness of the sentence.” Shugars,

895 A.2d at 1274. See also Pa.R.Crim.P. 2119(f). In his Rule 2119(f)

statement, McCray argues that his sentence is excessive because the

revocation court relied on, in effect, impermissible factors. Specifically, “that

his sentence [ ][i]s excessive in that the court based its sentencing decision

due to his failure to participate in any programs and that he was not

motivated to make any changes in his life.” Appellant’s Brief, at 13. McCray’s

allegation that his sentence is excessive due to the revocation court’s

reliance on impermissible factors raises a substantial question for our


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review. See, e.g., Shugars, 895 A.2d at 1274; Commonwealth v.

McNabb, 819 A.2d 54, 56-57 (Pa. Super. 2003). We proceed to the merits.

            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. An abuse of discretion is more than an error in
      judgment—a sentencing court has not abused its discretion
      unless the record discloses that the judgment exercised was
      manifestly unreasonable, or the result of partiality, prejudice,
      bias or ill-will.

Commonwealth v. Simmons, 56 A.3d 1280, 1283-1284 (Pa. Super. 2012)

(citation omitted).

      “Upon revocation the sentencing alternatives available to the court

shall be the same as were available at the time of initial sentencing, due

consideration being given to the time spent serving the order of probation.”

42 Pa.C.S.A. § 9771(b). And the revocation court may impose a sentence of

total confinement upon revocation if “the defendant has been convicted of

another crime[.]” Id., at (c)(1). “[T]he trial court is limited only by the

maximum sentence that it could have imposed originally at the time of the

probationary sentence.” Commonwealth v. Infante, 63 A.3d 358, 365 (Pa.

Super. 2013) (citation omitted).

      In addition, in all cases where the court resentences an offender
      following revocation of probation … the court shall make as a
      part of the record, and disclose in open court at the time of
      sentencing a statement of the reason or reasons for the
      sentence imposed [and] [f]ailure to comply with these provisions
      shall be grounds for vacating the sentence or resentence and
      resentencing the defendant. 42 Pa.C.S. § 9721(b). A trial court
      need not undertake a lengthy discourse for its reasons for
      imposing a sentence or specifically reference the statute in

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     question, but the record as a whole must reflect the sentencing
     court’s consideration of the facts of the crime and character of
     the offender.

Commonwealth v. Colon, 102 A.3d 1033, 1044 (Pa. Super. 2014), appeal

denied, 109 A.3d 678 (Pa. 2015) (case citations and quotation marks

omitted).

     At sentencing, the revocation court methodically explained to McCray

the circumstances of his predicament and its thinking about his situation:

           Because the problem, Mr. McCray, is you’ve made pretty
     clear to all of us that you don’t want to do another program and
     you pretty much told us that you didn’t want anything else from
     us. And then I look at what you’ve done in jail, and you pretty
     much haven’t done anything.

                                      …

           Telling JRS that you don’t want to do anything else. “I’ll
     stay in jail before I go to another program.”

                                      …

          And that’s my problem, because if it looked like you were
     making some attempts to actually change some things, I’d
     probably go with JRS’s recommendation and put you in re-entry
     and make you finish reentry before I let you out.

                                      …

            But the problem is you’ve been sitting in Allegheny County
     jail now since February pretty much doing nothing, which shows
     me that, you know, you’re not real interested and motivated to
     make any changes.

          So why in the world would I keep you there to do the
     programs?

                                      …



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             We’re not talking about you being at … Renewal. We’re
       talking about you. And quite frankly, even when you were at
       Renewal, if I recall, it was always really grudging that you were
       doing anything. And then you’re at the jail. And you have to
       make your own choices when you’re in jail. Nobody’s telling you
       what to do. There’s a Thinking for Change group down there.
       You can get on a drug and alcohol pod.

             You had a clean date of January, and you got into jail on
       February 2nd. You weren’t clean that long. Certainly some drug
       and alcohol support would have been a good thing. The Hope
       pod. You didn’t do any of that. You pretty much sat there waiting
       for stuff to be done. Which again shows me a lack of willingness
       to participate in the change that you so desperately need to stay
       out of the criminal justice system.

             And so for me, I look at that and I think that, you know,
       why am I going to keep you there? Why am I going to keep you
       at the Allegheny County Jail? It doesn’t make a whole lot of
       sense.

              Maybe you need something different. A new environment.
       Try some different programs so when you come out, you know,
       you’ll actually have learned something. Something will have sunk
       in. You will have insight about what you need to do to stay on
       the right path.

N.T., Sentencing, 12/15/15, at 8-11.

       The revocation court observed that the standard range of the

sentencing guidelines for criminal attempt to commit burglary called for a

sentence of 15 to 21 months.1 See id., at 12. The court, finding that “a

change of scenery” from McCray’s current residence in Allegheny County
____________________________________________


1
  McCray had a prior record score of two. See Appellant’s Brief, at 11. The
offense gravity score for criminal attempt to commit burglary, 18 Pa.C.S.A.
§§ 901(a); 3502(a)(1), is eight, see 204 Pa. Code. §§ 303.3(c)(1); 303.15,
leaving the standard range of the sentencing guidelines at 15-21 months,
see 303.16(a)



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Prison “would be a good thing,” imposed a sentence of incarceration of 18 to

36 months. Id.

      The sentencing guidelines do not apply in revocation proceedings.

See, e.g., Commonwealth v. Pasture, 107 A.3d 21, 27 (2014). Here,

however, the revocation court imposed a sentence squarely within the

standard range of the sentencing guidelines. This standard range sentence

would have been presumptively reasonable at the initial sentencing, see,

e.g., Commonwealth v. Fowler, 893 A.2d 758, 767 (Pa. Super. 2006), let

alone on revocation.

      The sentence imposed by the revocation court is in no way excessive—

nor did the court rely on any impermissible factors in imposing sentence.

Thus, McCray’s challenge to the discretionary aspects of his sentence fails.

      After examining the issues contained in the Anders brief and

undertaking our independent review of the record, we concur with counsel’s

assessment that the appeal is wholly frivolous.

      Judgment of sentence affirmed. Petition to withdraw as counsel

granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/2017




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