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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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