J-S46018-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

WILLIAM MCCORMICK 

 Appellant No. 345 MDA 2014 

Appeal from the Judgment of Sentence January 14, 2014

In the Court of Common Pleas of Lycoming County 

Criminal Division at No(s): CP-41-CR-0000039-2012 

BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.: FILED AUGUST 21, 2014 

 William McCormick appeals from his judgment of sentence, imposed in 

the Court of Common Pleas of Lycoming County, after he violated the 

conditions of his Intermediate Punishment (“IP”) Program. Counsel has filed 

a petition to withdraw pursuant to Anders, McClendon and Santiago.

1

 

Upon review, we affirm McCormick’s judgment of sentence and grant 

counsel’s petition to withdraw. 

 On February 16, 2012, McCormick entered a guilty plea to retail theft 

and was sentenced to IP for a period of three years, the first six months of 

which were to be served at the Lycoming County Prison and Pre-Release 

____________________________________________ 

1 Anders v. California, 386 U.S. 738 (1967); Commonwealth v. 

McClendon, 434 A.2d 1185 (Pa. 1981); and Commonwealth v. Santiago, 

978 A.2d 349 (Pa. 2009). 
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facility. After serving six months at the Lycoming County Prison, McCormick 

was released on supervision. On November 14, 2013, the trial court held a 

preliminary IP hearing after learning that McCormick had obtained new 

criminal charges of retail theft, and had failed to report to the Adult 

Probation Office as instructed. At this hearing, the court agreed to consider 

allowing McCormick to enroll in either a halfway house or a rehabilitation 

program if he was able to do so. However, McCormick could only be placed 

on a waiting list at the American Rescue Workers due to the fact that he was 

incarcerated on the new retail theft charges. On January 14, 2014, the 

court held a final violation hearing and found that McCormick was guilty 

beyond a reasonable doubt of the new charges of retail theft. The court resentenced McCormick to one to two years’ incarceration with a consecutive 

year of probation, to be supervised by the Pennsylvania Board of Probation 

and Parole. On February 12, 2014, McCormick filed a timely notice of appeal 

followed by a court-ordered concise statement of errors complained of on 

appeal pursuant to Pa.R.A.P. 1925(b). 

“When faced with a purported Anders brief, this Court may not review 

the merits of the underlying issues without first passing on the request to 

withdraw.” Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 

2005). In order to withdraw pursuant to Anders and McClendon, counsel 

must: (1) petition the Court for leave to withdraw, certifying that after a 

thorough review of the record, counsel has concluded the issues to be raised 
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are wholly frivolous; (2) file a brief referring to anything in the record that 

might arguably support the appeal; and (3) furnish a copy of the brief to the 

appellant and advise him of his right to obtain new counsel or file a pro se

brief to raise any additional points that the appellant deems worthy of 

review. Commonwealth v. Hernandez, 783 A.2d 784, 786 (Pa. Super. 

2001). In Santiago, the Pennsylvania Supreme Court altered the 

requirements for withdrawal under Anders to mandate the inclusion of a 

statement detailing counsel’s reasons for concluding the appeal is frivolous. 

Instantly, counsel’s petition states that she has made an examination 

of the record and concluded the appeal is wholly frivolous. Counsel supplied 

McCormick with a copy of the brief and a letter explaining McCormick’s right 

to proceed pro se, or with newly-retained counsel, and to raise any other 

issues he believes might have merit. Counsel also has submitted a brief, 

setting out in neutral form a single issue of arguable merit. Finally, counsel 

has explained, pursuant to the dictates of Santiago, why she believes the 

issue to be frivolous. See Anders Brief, at 10-11. Thus, counsel has 

substantially complied with the requirements of Anders, McClendon and 

Santiago. 

 Counsel having satisfied the procedural requirements for withdrawal, 

this Court must conduct its own review of the proceedings and render an 

independent judgment as to whether the appeal is, in fact, wholly frivolous. 

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004). In her 
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Anders brief, counsel raises the following issue: Whether the trial court 

abused its discretion by imposing a manifestly excessive sentence.2

McCormick’s claim raises a challenge to the discretionary aspects of his 

sentence. “It is well-settled that appeals of discretionary aspects of a 

sentence are not reviewable as a matter of right. Before a challenge to the 

sentence will be heard on the merits, an appellant, in order to invoke the 

Court’s jurisdiction, must set forth in his brief a separate and concise 

statement of reasons relied upon in support of his appeal.” Pa.R.A.P. 

2119(f); Commonwealth v. Ladamus, 896 A.2d 592, 595 (Pa. Super. 

2006). McCormick failed to submit a 2119(f) statement. However, in light 

of counsel’s petition to withdraw, we address McCormick’s claim. 

Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009) (citing 

Commonwealth v. Hernandez, 783 A.2d 784, 787 (Pa. Super. 2001) 

(Anders requires review of issues otherwise waived on appeal)). 

Judicial review of the discretionary aspects of a judgment of sentence 

is granted only upon a showing that there is a substantial question that the 

sentence was inappropriate and contrary to the fundamental norms 

underlying the Sentencing Code. Commonwealth v. Tuladziecki, 522 

A.2d 17 (Pa. 1987). A substantial question exists “only when the appellant 

advances a colorable argument that the sentencing judge’s actions were 

____________________________________________ 

2

 McCormick did not submit any additional claims for our review in response 

to counsel’s Anders brief. 
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either: (1) inconsistent with a specific provision in the Sentencing Code; or 

(2) contrary to the fundamental norms which underlie the sentencing 

process.” Commonwealth v. Brown, 741 A.2d 726, 735 (Pa. Super. 1999) 

(en banc). Further, “[a]n appellant’s contention that the trial court did not 

adequately consider a mitigating circumstance when imposing [a] sentence 

does not raise a substantial question sufficient to justify appellate review of 

the merits of such claim.” Commonwealth v. Ladamus, 896 A.2d 592, 

595 (Pa. Super. 2006). 

McCormick’s claim does not raise a substantial question, as his 

sentence is neither inconsistent with a specific provision of the Sentencing 

Code nor contrary to the fundamental norms which underlie the sentencing 

process. Although McCormick claims that the sentence imposed is 

manifestly excessive, he does not claim that it is outside the maximum 

sentence for the offense. In fact, McCormick 

pled guilty . . . to Retail Theft, a felony of the third degree. The 

statutory maximum for that offense is seven (7) years. 

[McCormick’s] sentence of one (1) to two (2) years at a State 

Correctional Institution with a consecutive year of probation, 

which he received at his final IP violation hearing, is within the 

maximum sentence. 

Trial Court Opinion, 3/21/14, at 3. As such, McCormick’s claim does not 

raise a substantial question based on an inconsistency with the sentencing 

code or the fundamental norms underlying the sentencing process. 

Further, McCormick’s claim that the trial court did not consider the fact 

that he had secured a place on a waiting list at the American Rescue 
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Workers also does not raise a substantial question. A challenge to the trial 

court’s failure to consider a mitigating factor does not raise a substantial 

question. See Ladamus, 896 A.2d at 595. For the foregoing reasons, 

McCormick’s claim does not raise a substantial question and, therefore, the 

trial court did not abuse its discretion in sentencing McCormick to one to two 

years’ incarceration followed by one year of probation. Accordingly, 

McCormick’s appeal is frivolous. 

Judgment of sentence affirmed; petition to withdraw granted. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/21/2014