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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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. 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

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- 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”) P rogram. 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 ple a to retail theft and was sentenced to IP for a period of three years, th e 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).J-S46018- 14

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facility. After serving six months at the Lycoming Cou nty 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 re port to the Adult Probation Office as instructed. At this hearing, the co urt agreed to consider allowing McCormick to enroll in either a halfway hou se or a rehabilitation program if he was able to do so. However, McCormick cou ld 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 Janua ry 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’ incar ceration with a consecutive year of probation, to be supervised by the Pennsylvani a 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 co mplained 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 raisedJ-S46018- 14

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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 appell ant 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 friv olous. Counsel supplied McCormick with a copy of the brief and a letter expla ining McC ormick’s right to proceed pro se , or with newly-retained counsel, and to raise any ot her issues he believes might have merit. Counsel also has subm itted a brief, setting out in neutral form a single issue of arguabl e 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 fo r withdrawal, this Court must conduct its own review of the proceeding s 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 herJ-S46018- 14

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Anders br ief, counsel raises the following issue: Whether the tr ial court abused its discretion by imposing a manifestly excessive se ntence. 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. Bef ore 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 separa te and concise
stateme nt of reasons relied upon in support of his appeal.” P a.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 judgmen t of sentence is granted only upon a showing that there is a substanti al question that the sentence was inappropriate and contrary to the fundamen tal norms underlying the Sentencing Code. Commonwealth v. Tuladziecki , 522 A.2d 17 (Pa. 1987). A su bstantial 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 ou r review in response to counsel’s Anders brief.J-S46018- 14

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either: (1) inconsistent with a specific provision in th e Sentencing Code; or (2) contrary to the fundamental norms which underlie t he sentencing process.” Commonwealth v. Brown , 741 A.2d 726, 735 (Pa. Super. 1999) ( en banc ). Further, “[a]n appellant’s contention that the tri al court did not adequately consider a mitigating circumstance when impo sing [a] sentence does not raise a substantial question sufficient to ju stify 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, a s his sentence is neither inconsistent with a specific provision of the Sentencing Code nor contrary to the fundamental norms which under lie the sentencing process. Although McCormick claims that the sentence impose d is manifestly excessive, he does not claim that it is outsi de 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 S tate Correctional Institution with a consecutive year of pr obation, which he received at his final IP violation hearing, i s 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 wit h the sentencing code or the fundamental norms underlying the sentencin g 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 Am erican RescueJ-S46018- 14

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Workers also does not raise a substantial question. A cha llenge to the trial

co urt’s failure to consider a mitigating factor does not r aise a substantial question. See Ladamus , 896 A.2d at 595. For the foregoing reasons, McCormick’s claim does not raise a substantial question a nd, therefore, the trial court did not abuse its discretion in sentencing McCo rmick 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