J-S66004-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

WILLIAM JAMES GILLETTE, III,

                         Appellant                  No. 775 MDA 2014


           Appeal from the Judgment of Sentence April 1, 2014
           In the Court of Common Pleas of Lackawanna County
            Criminal Division at No(s): CP-35-CR-0000724-2013


BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                   FILED OCTOBER 22, 2014

      Appellant, William James Gillette, III, appeals from the judgment of

sentence of 11 to 24 months’ incarceration, imposed after he pled guilty to

simple assault – serious bodily injury. On appeal, Appellant challenges the

discretionary aspects of his sentence.   Additionally, his counsel, Donna M.

DeVita, Esq., seeks permission to withdraw her representation of Appellant

pursuant to Anders v. California, 386 U.S. 738 (1967), as elucidated by

our Supreme Court in Commonwealth v. McClendon, 434 A.2d 1185 (Pa.

1981), and amended in Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009).   Upon review, we conclude that Appellant’s sentencing claim is

waived; accordingly, we affirm Appellant’s judgment of sentence and grant

counsel’s petition to withdraw.
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      On January 10, 2014, Appellant pled guilty to the above-stated offense

based on his act of punching his ex-girlfriend, breaking two of her ribs. On

April 1, 2014, he was sentenced to a term of 11 to 24 months’ incarceration.

Appellant filed a timely post-sentence motion for reconsideration of his

sentence, asking the court to lower his maximum term to 23½ months so

Appellant   could    “remain   in    the    Lackawanna   County   Work   Release

Program….”    Motion for Reconsideration, 4/3/14, at 1 (unnumbered).        The

trial court denied that motion, and Appellant timely appealed. He also filed a

timely concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b).

      On August 4, 2014, Attorney DeVita filed with this Court a petition to

withdraw and Anders brief.          “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) (quoting Commonwealth v. Smith, 700 A.2d

1301, 1303 (Pa. Super. 1997)).         In Santiago, our Supreme Court altered

the requirements for counsel to withdraw under Anders. Thus, pursuant to

Anders/Santiago, in order to withdraw from an appeal, counsel now 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



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     (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.

Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010) (citing

Santiago, 978 A.2d at 361).      “Counsel also must provide a copy of the

Anders brief to his client.” Commonwealth v. Orellana, 86 A.3d 877, 880

(Pa. Super. 2014).

     Attending the brief must be a letter that advises the client of his
     right to: “(1) retain new counsel to pursue the appeal; (2)
     proceed pro se on appeal; or (3) raise any points that the
     appellant deems worthy of the court[']s attention in addition to
     the points raised by counsel in the Anders brief.”
     Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super.
     2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).

Orellana, 86 A.3d at 880. Once we are satisfied that counsel has met these

technical requirements, this Court must then conduct its own review of the

record and independently determine whether the appeal is, in fact, wholly

frivolous. See Daniels, 999 A.2d at 594.

     Instantly, Attorney DeVita’s Anders brief provides a detailed summary

of the procedural history and facts of Appellant’s case with citations to the

record.   She also includes a discussion of the sentencing issue Appellant

seeks to raise on appeal. Attorney DeVita sets forth her conclusion that an

appeal on Appellant’s behalf would be wholly frivolous and explains the

reasons underlying that determination. She also supports her rationale with

citations to the record, as well as relevant case law. Additionally, Attorney

DeVita attached to her petition to withdraw a copy of a letter she sent to



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Appellant advising him that he has the right to retain new counsel, proceed

pro se, and/or raise any issues he deems worthy of this Court’s examination.

Therefore, we conclude that Attorney DeVita has complied with the

requirements of Anders/Santiago. Accordingly, we will now independently

review Appellant’s sentencing claim, and also determine whether there are

any other issues he could arguably present on appeal.      See Daniels, 999

A.2d at 594.

      In her Anders brief, Attorney DeVita explains the argument Appellant

seeks to raise on appeal as follows:

      Appellant argues that the sentencing was excessive in light of all
      of the factors present. He asserts that the sentencing court
      should impose the minimum sentence consistent with the
      protection of the public, the gravity of the offense, and the
      rehabilitative needs of [] Appellant. He submits that the fact
      that he attended Anger Management and domestic violence
      courses along with his efforts to correct his behavior should have
      been considered by the lower court when it imposed its
      sentence. He asserts that the lower court did not conduct any
      true analysis of whether he posed a danger to the community at
      large. Therefore, the lower court’s reasoning was not only
      insufficient, but it also resulted in a sentence that was not
      individualized, as required.

Anders Brief at 11.

      While Attorney DeVita discusses the merits of Appellant’s arguments

and concludes they are frivolous, we reach the same conclusion for a

different reason.     In Commonwealth v. Bromley, 862 A.2d 598 (Pa.

Super. 2004), we stated:

      It is well settled that an [a]ppellant’s challenge to the
      discretionary aspects of his sentence is waived if the [a]ppellant


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       has not filed a post-sentence motion challenging the
       discretionary aspects with the sentencing court.         See []
       Commonwealth v. Mann, 820 A.2d 788 (Pa. Super. 2003)
       (issues challenging the discretionary aspects of sentence must
       be raised in [a] post-sentence motion or by raising claim during
       sentencing proceedings; absent such initiative, objection to the
       discretionary aspects of sentence waived on appeal).

          To reach the merits of a discretionary sentencing issue, we
          conduct a four-part analysis to determine: (1) whether
          [the] [a]ppellant has filed a timely notice of appeal; (2)
          whether the issue was properly preserved at the
          sentencing or in a motion to reconsider and modify
          sentence; (3) whether [the] [a]ppellant’s brief has a fatal
          defect; and (4) whether there is a substantial question
          that the sentence appealed from is not appropriate under
          the sentencing code.

Id. at 603 (quoting Commonwealth v. Petaccio, 764 A.2d 582, 586 (Pa.

Super. 2000), rev’d on other grounds by Commonwealth v. Mouzon, 812

A.2d 617 (Pa. 2002)).1

       In Appellant’s post-sentence motion for reconsideration, he solely

argued that his maximum sentence should be reduced to 23½ months’

imprisonment to allow him to continue participating in the county work

____________________________________________


1
  See also Commonwealth v. Bullock, 948 A.2d 818 (Pa. Super. 2008)
(stating the right to appeal a discretionary aspect of sentence is not absolute
and is waived if the appellant does not challenge it in post-sentence motions
or by raising the claim during the sentencing proceedings); Commonwealth
v. Lloyd, 878 A.2d 867 (Pa. Super. 2005), appeal denied, 887 A.2d 1240
(Pa. 2005) (finding the appellant waived his challenge to his sentence where
he failed to raise the issue at the sentencing hearing or in his post-sentence
motion); Commonwealth v. Parker, 847 A.2d 745 (Pa. Super. 2004)
(holding the appellant’s assertion that the trial court erred in sentencing him
in the aggravated range was waived where he failed to raise this claim either
at sentencing or in a post-sentence motion).




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release program. He did not present any of the arguments he seeks to raise

on appeal in that motion or orally at the time of his sentencing hearing;

consequently, those claims are waived.           For this reason, we agree with

Attorney DeVita that Appellant’s challenge to the discretionary aspects of his

sentence is frivolous. Moreover, our review of the record reveals no other

issue(s) of arguable merit that Appellant could present herein.2      Thus, we

affirm his 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: 10/22/2014
____________________________________________


2
  In particular, we note that there is nothing in the record indicating it was
an abuse of the court’s discretion to deny the sole issue preserved in
Appellant’s post-sentence motion, i.e., his request that the court reduce his
sentence to permit him to continue in the work release program.            See
Commonwealth v. Tuddles, 782 A.2d 560, 563-64 (Pa. Super. 2001)
(stating that 61 P.S. § 2141 (now 42 Pa.C.S. § 9813), which allows a court
to effectuate programs such as work release, “does not create a statutory
right to release[;]” instead, “[i]t does nothing more than recognize by
statute the power to direct a temporary release when the court deems it
proper; it does not suggest the court is at any time obligated to do so”). We
also point out that Appellant did not file a pro se response to counsel’s
Anders brief, thereby indicating his intent to abandon this work-release
claim.




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