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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

-------------------------------------------------------------------------------------

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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