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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


____________________________________________


*   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
____________________________________________


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.
____________________________________________


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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