J-S29032-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                Appellee                  :
                                          :
                   v.                     :
                                          :
JOHN PATRICK AROSE,                       :
                                          :
                Appellant                 : No. 1783 WDA 2014

    Appeal from the Judgment of Sentence Entered September 22, 2014,
             in the Court of Common Pleas of Jefferson County,
            Criminal Division, at No(s): CP-33-CR-0000139-2014
                          CP-33-CR-0000590-2007
                          CP-33-CR-0000591-2007
                          CP-33-CR-0000592-2007
                          CP-33-CR-0000593-2007

BEFORE:     PANELLA, MUNDY, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.:                       FILED JUNE 24, 2015

      John Patrick Arose (Appellant) appeals from his September 22, 2014

judgment of sentence, which the trial court imposed after revoking

Appellant’s probation. In addition, Appellant’s counsel has filed a petition to

withdraw and a brief pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We

affirm the judgment of sentence and grant the petition to withdraw.

      On January 20, 2014, Appellant was charged with three counts of

possession of drug paraphernalia at case number 139 of 2014.          Appellant

entered into a negotiated plea agreement whereby he pled guilty to one

count of possession of drug paraphernalia in exchange for a sentence of one



*Retired Senior Judge assigned to the Superior Court.
J-S29032-15


year of probation. On June 4, 2014, consistent with the plea agreement, he

was sentenced to one year of probation.

        Because   Appellant   was   serving   a term   of   probation   for   prior

convictions at the time of his new conviction, on September 22, 2014,

Appellant appeared for a Gagnon II1 hearing. At that time, the court took

judicial notice of the plea and sentence imposed at 139 of 2014. N.T.,

9/22/2014, at 2. The court found that this new conviction was a violation of

Appellant’s probation that had been imposed at cases 590, 591, 592, and

593 of 2007.2 The court further pointed out that this was Appellant’s second

set of charges while on probation. Id. at 2. Moreover, the court noted that

on June 5, 2014, just one day after being sentenced at case number 139 of

2014, Appellant was charged with possession of a controlled substance

(marijuana) and possession of drug paraphernalia at case number 337 of

2014.3

        Accordingly,   the   court revoked Appellant’s probation        at docket

numbers 590, 591, 592, and 593 of 2007 and sentenced him to an

aggregate term of 5 to 10 years’ incarceration to be followed by three years

of probation. The court also revoked Appellant’s probation at 139 of 2014,

1
    Gagnon v. Scarpelli, 411 U.S. 778 (1973).
2
    All of these convictions were drug-related.
3
  Appellant subsequently pled guilty to the possession charge and was
sentenced to 3 to 12 months’ incarceration on September 17, 2014.


                                       -2-
J-S29032-15


and sentenced him to a consecutive 6 to 12 months’ incarceration.             The

court also determined that Appellant is eligible for the Recidivism Risk

Reduction Incentive program.4

        On October 20, 2014, Appellant filed a motion for reconsideration of

sentence.5 That motion was denied on October 22, 2014, and Appellant filed

a notice of appeal that day.6     Both Appellant and the court complied with

Pa.R.A.P. 1925.

        The following principles guide our review of this matter:

        Direct appeal counsel seeking to withdraw under Anders must
        file a petition averring that, after a conscientious examination of
        the record, counsel finds the appeal to be wholly frivolous.
        Counsel must also file an Anders brief setting forth issues that
        might arguably support the appeal along with any other issues
        necessary for the effective appellate presentation thereof….

               Anders counsel must also provide a copy of the Anders
        petition and brief to the appellant, advising the appellant of the
        right to retain new counsel, proceed pro se or raise any
        additional points worthy of this Court’s attention.

              If counsel does not fulfill the aforesaid technical
        requirements of Anders, this Court will deny the petition to

4
    Recidivism Risk Reduction Incentive Act, 61 Pa.C.S. §§ 4501–4512.
5
  A post-sentence motion must be filed within 10 days after the imposition of
the sentence. Pa.R.Crim.P. 720(A)(1).      Accordingly, this post-sentence
motion, filed 28 days after the imposition of the sentence, was filed
untimely.
6
 Where an untimely post-sentence motion is filed, a notice of appeal must
be filed 30 days after the imposition of the sentence. Pa.R.Crim.P.
720(A)(3). Because the notice of appeal was filed on October 22, 2014,
exactly 30 days after the imposition of sentence, it was filed timely.


                                       -3-
J-S29032-15


        withdraw and remand the case with appropriate instructions
        (e.g., directing counsel either to comply with Anders or file an
        advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
        petition and brief satisfy Anders, we will then undertake our
        own review of the appeal to determine if it is wholly frivolous. If
        the appeal is frivolous, we will grant the withdrawal petition and
        affirm the judgment of sentence. However, if there are non-
        frivolous issues, we will deny the petition and remand for the
        filing of an advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)

(citations omitted).

        Our Supreme Court has clarified portions of the Anders procedure:

        Accordingly, we hold that in the Anders brief that accompanies
        court-appointed counsel’s petition to withdraw, counsel must:
        (1) provide a summary of the procedural history and facts, with
        citations to the record; (2) refer to anything in the record that
        counsel believes arguably supports the appeal; (3) set forth
        counsel’s conclusion that the appeal is frivolous; and (4) state
        counsel’s reasons for concluding that the appeal is frivolous.
        Counsel should articulate the relevant facts of record, controlling
        case law, and/or statutes on point that have led to the
        conclusion that the appeal is frivolous.

Santiago, 978 A.2d at 361.

        Based upon our examination of counsel’s application to withdraw and

Anders brief, we conclude that counsel has substantially complied with the

above requirements.7       “We, therefore, turn to the issue presented in

counsel’s Anders brief to make an independent judgment as to whether the




7
    Appellant has not responded to counsel’s application to withdraw.



                                       -4-
J-S29032-15


appeal is, in fact, wholly frivolous.” Commonwealth v. Martuscelli, 54

A.3d 940, 947 (Pa. Super. 2012).

      According to counsel, Appellant wishes to challenge the discretionary

aspects of his sentence: “Whether the trial court abused its discretion when

it revoked Appellant’s probation and re-sentenced him to serve a sentence of

incarceration in the State Correctional Institution aggregating to a minimum

of five and one-half (5½) years to a maximum of eleven (11) years for

[A]ppellant’s violation of probation.”8

      It is well settled that, with regard to the discretionary aspects of
      sentencing, there is no automatic right to appeal.

         Before [this Court may] reach the merits of [a challenge to
         the discretionary aspects of a sentence], we must engage
         in a four part analysis to 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.... [I]f the appeal satisfies each of
         these four requirements, we will then proceed to decide
         the substantive merits of the case.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations

omitted).




8
   “[I]t is within our scope of review to consider challenges to the
discretionary aspects of an appellant’s sentence in an appeal following a
revocation of probation.” Commonwealth v. Ferguson, 893 A.2d 735, 737
(Pa. Super. 2006).


                                      -5-
J-S29032-15


      Instantly, has satisfied the first requirement by filing timely a notice of

appeal. To satisfy the second requirement regarding preservation, we point

out that “[o]bjections to the discretionary aspects of a sentence are

generally waived if they are not raised at the sentencing hearing or in a

motion to modify the sentence imposed.” Commonwealth v. Griffin, 65

A.3d 932, 935 (Pa. Super. 2013).

      Appellant’s motion for reconsideration of sentence was not filed in a

timely fashion. See footnote 5, supra. Additionally, Appellant did not raise

this issue at his sentencing hearing. See N.T., 9/22/2014. Therefore,

Appellant has not preserved this issue, and it is waived. An issue that is

waived is frivolous. See Commonwealth v. Kalichak, 943 A.2d 285, 291

(Pa. Super. 2008) (holding that when an issue has been waived, “pursuing

th[e] matter on direct appeal is frivolous”).

      Consequently, we agree with counsel that this appeal is wholly

frivolous. For these reasons, we affirm the judgment of sentence and grant

counsel’s petition to withdraw.

      Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/24/2015


                                      -6-
