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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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