Com. v. McNear, D., Com. v. McNear, D. No. 1039 MDA 2016

Devin McNear stayed overnight at victim Tara Flannery's home; two rifles and change were later discovered missing and found in a vehicle involved in McNear’s car accident.
Police investigation connected McNear to the rifles; he was charged with two counts each of theft by unlawful taking and receiving stolen property.
In February 2016 McNear pled guilty to one count of theft by unlawful taking; remaining charges were nolle prossed.
In May 2016 the trial court sentenced McNear to 1–2 years incarceration plus three years probation to run consecutively to an earlier sentence; court noted McNear was ineligible for intermediate punishment due to prior sexual-assault adjudications.
McNear filed a motion for reconsideration arguing intermediate punishment would better address his drug addiction; the court denied it.
Appellate counsel filed an Anders brief, moved to withdraw, and raised (as McNear’s sole issue) that the sentence was harsh and unreasonable.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Discretionary aspects of sentence (excessiveness)	McNear: sentence is harsh, unreasonable, manifestly excessive	Commonwealth: sentence within guideline range, court considered statutory factors and ineligibility for intermediate punishment	Waived for failure to preserve in motion to reconsider; meritless in any event — sentence within standard guideline range and not an abuse of discretion

Anders v. California, 386 U.S. 738 (1967) (procedure for counsel seeking withdrawal on appeal)
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) (requirements for Anders brief in Pennsylvania)
Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (waiver where discretionary-sentencing claim not preserved)
Commonwealth v. Mouzon, 812 A.2d 626 (Pa. 2002) (standards for articulating substantial question on sentencing)
Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010) (sentence within standard guideline range presumptively appropriate)