# Com. v. McCormick, W. > Superior Court of Pennsylvania ยท August 21, 2014 URL: https://www.frixlaw.com/law-library/cases/2719996 ## Case - **Court:** Superior Court of Pennsylvania - **Decided:** August 21, 2014 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2719996 ## Opinion text J-S46018-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. WILLIAM MCCORMICK Appellant No. 345 MDA 2014 Appeal from the Judgment of Sentence January 14, 2014 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0000039-2012 BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J. MEMORANDUM BY LAZARUS, J.: FILED AUGUST 21, 2014 William McCormick appeals from his judgment of sentence, imposed in the Court of Common Pleas of Lycoming County, after he violated the rogram. Counsel has filed a petition to withdraw pursuant to Anders, McClendon and Santiago.1 On February 16, 2012, McCormick entered a guilty plea to retail theft and was sentenced to IP for a period of three years, the first six months of which were to be served at the Lycoming County Prison and Pre-Release ____________________________________________ 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). J-S46018-14 facility. After serving six months at the Lycoming County Prison, McCormick was released on supervision. On November 14, 2013, the trial court held a preliminary IP hearing after learning that McCormick had obtained new criminal charges of retail theft, and had failed to report to the Adult Probation Office as instructed. At this hearing, the court agreed to consider allowing McCormick to enroll in either a halfway house or a rehabilitation program if he was able to do so. However, McCormick could only be placed on a waiting list at the American Rescue Workers due to the fact that he was incarcerated on the new retail theft charges. On January 14, 2014, the court held a final violation hearing and found that McCormick was guilty beyond a reasonable doubt of the new charges of retail theft. The court re- ceration with a consecutive year of probation, to be supervised by the Pennsylvania Board of Probation and Parole. On February 12, 2014, McCormick filed a timely notice of appeal followed by a court-ordered concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Anders brief, this Court may not review the merits of the underlying issues without first passing on the request to Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005). In order to withdraw pursuant to Anders and McClendon, 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 -2- J-S46018-14 are wholly frivolous; (2) file a brief referring to anything in the record that might arguably support the 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 to raise any additional points that the appellant deems worthy of review. Commonwealth v. Hernandez, 783 A.2d 784, 786 (Pa. Super. 2001). In Santiago, the Pennsylvania Supreme Court altered the requirements for withdrawal under Anders to mandate the inclusion of a statement detailing reasons for concluding the appeal is frivolous. of the record and concluded the appeal is wholly frivolous. Counsel supplied McCormick with a copy of the brief and a letter explaining McC to proceed pro se, or with newly-retained counsel, and to raise any other issues he believes might have merit. Counsel also has submitted a brief, setting out in neutral form a single issue of arguable merit. Finally, counsel has explained, pursuant to the dictates of Santiago, why she believes the issue to be frivolous. See Anders Brief, at 10-11. Thus, counsel has substantially complied with the requirements of Anders, McClendon and Santiago. Counsel having satisfied the procedural requirements for withdrawal, this Court must 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). In her -3- J-S46018-14 Anders brief, counsel raises the following issue: Whether the trial court abused its discretion by imposing a manifestly excessive sentence.2 -settled that appeals of discretionary aspects of a sentence are not reviewable as a matter of right. Before a challenge to the sentence will be heard on the merits, an appellant, in order to invoke the stateme 2119(f); Commonwealth v. Ladamus, 896 A.2d 592, 595 (Pa. Super. 2006). McCormick failed to submit a 2119(f) statement. However, in light Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009) (citing Commonwealth v. Hernandez, 783 A.2d 784, 787 (Pa. Super. 2001) (Anders requires review of issues otherwise waived on appeal)). Judicial review of the discretionary aspects of a judgment of sentence is granted only upon a showing that there is a substantial question that the sentence was inappropriate and contrary to the fundamental norms underlying the Sentencing Code. Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987). A su ____________________________________________ 2 McCormick did not submit any additional claims for our review in response Anders brief. -4- J-S46018-14 either: (1) inconsistent with a specific provision in the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing Commonwealth v. Brown, 741 A.2d 726, 735 (Pa. Super. 1999) (en banc adequately consider a mitigating circumstance when imposing [a] sentence does not raise a substantial question sufficient to justify appellate review of Commonwealth v. Ladamus, 896 A.2d 592, 595 (Pa. Super. 2006). sentence is neither inconsistent with a specific provision of the Sentencing Code nor contrary to the fundamental norms which underlie the sentencing process. Although McCormick claims that the sentence imposed is manifestly excessive, he does not claim that it is outside the maximum sentence for the offense. In fact, McCormick pled guilty . . . to Retail Theft, a felony of the third degree. The statutory maximum for that offense is seven (7) years. Correctional Institution with a consecutive year of probation, which he received at his final IP violation hearing, is within the maximum sentence. raise a substantial question based on an inconsistency with the sentencing code or the fundamental norms underlying the sentencing process. that he had secured a place on a waiting list at the American Rescue -5- J-S46018-14 Workers also does not raise a substantial question. A challenge to the trial co question. See Ladamus, 896 A.2d at 595. For the foregoing reasons, trial court did not abuse its discretion in sentencing McCormick to one to two Judgment of sentence affirmed; petition to withdraw granted. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 8/21/2014 -6- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2719996. Public record. Not legal advice.