Com. v. McLean, J.
292 EDA 2017
| Pa. Super. Ct. | Oct 10, 2017Background
- Defendant Joseph McLean had multiple prior convictions since 2005 for drug and firearms offenses and repeated probation/parole violations.
- At a consolidated violation-of-probation/parole (VOP) hearing, McLean admitted repeated positive drug tests (marijuana monthly since May; opiates in May).
- Defense asked the court to impose McLean’s remaining back-time (11½–23 months) and immediately parole him to a dual-diagnosis treatment center; judge Bronson agreed.
- The court sentenced McLean to 11½–23 months’ incarceration (back-time) with immediate parole to treatment and five years’ concurrent probation; McLean did not file post-sentence motions.
- Appellate counsel filed an Anders/McClendon/Santiago brief and a petition to withdraw, concluding any appeal would be frivolous; McLean filed no pro se supplemental brief.
- The Superior Court reviewed counsel’s compliance with Anders/Santiago and independently reviewed the record, then affirmed the judgment of sentence and granted counsel leave to withdraw.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate counsel complied with Anders/Santiago requirements to withdraw | Counsel (as appellee for purposes of withdrawal review) contends he conducted a thorough review, identified a potentially arguable issue, furnished the brief to McLean, explained rights, and explained why the issue is frivolous | McLean did not contest counsel’s compliance or submit supplemental filings | Court held counsel complied with Anders/Santiago procedural requirements and granted withdrawal |
| Whether McLean’s sentence was excessive (discretionary aspects of sentence) | Commonwealth argued revocation court properly exercised discretion given repeated violations and need to vindicate court authority; sentence was the defendant’s own request | McLean argued sentence was excessive (was the claim presented on appeal but he did not file post-sentence motions) | Court held the claim was waived for failure to file post-sentence motion; alternatively, no abuse of discretion because sentence (imposed at defendant’s request) was reasonable to vindicate court authority and to address substance-abuse treatment needs |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (establishes counsel’s obligations when seeking to withdraw on grounds that an appeal is frivolous)
- Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) (requires counsel to state reasons why appeal is frivolous when moving to withdraw)
- Commonwealth v. Hernandez, 783 A.2d 784 (Pa. Super. 2001) (describes Anders procedural requirements applicable in Pennsylvania)
- Commonwealth v. Wright, 846 A.2d 730 (Pa. Super. 2004) (court must conduct independent review when counsel seeks withdrawal under Anders)
- Commonwealth v. Allen, 24 A.3d 1058 (Pa. Super. 2011) (four-part test for invoking appellate review of discretionary sentencing claims)
- Commonwealth v. Griffin, 65 A.3d 932 (Pa. Super. 2013) (discretionary-sentencing challenges waived if not raised at sentencing or in post-sentence motions)
- Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007) (standard for abuse of discretion in sentencing review)
- Commonwealth v. Kalichak, 943 A.2d 285 (Pa. Super. 2008) (authority on sentencing options after probation revocation and factors allowing confinement)