J-S49036-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DANIEL ROSARIO,

                            Appellant                 No. 292 MDA 2015


          Appeal from the Judgment of Sentence of January 14, 2015
            In the Court of Common Pleas of Lackawanna County
             Criminal Division at No(s): CP-35-CR-0000859-2008


BEFORE: BENDER, P.J.E., ALLEN AND OLSON, JJ.

MEMORANDUM BY OLSON, J.:                            FILED AUGUST 11, 2015

        Appellant, Daniel Rosario, appeals from the judgment of sentence

entered on January 14, 2015 in the Criminal Division of the Court of

Common Pleas of Lackawanna County following revocation of his probation.

On appeal, counsel filed an application to withdraw from representation

pursuant to Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981) and

its federal precursor, Anders v. California, 386 U.S. 738 (1967), as well as

an Anders brief on Appellant’s behalf.1        Upon careful consideration, we

grant counsel’s leave to withdraw and affirm the judgment of sentence.

        The pertinent facts and procedural history of this case are as follows.

In June 2008, Appellant pled guilty to possession of a controlled substance

____________________________________________


1
    Appellant has not responded to counsel’s application to withdraw.
J-S49036-15



with intent to deliver, 35 Pa.C.S.A. § 780-113(A)(30).              Thereafter, in

September 2008, the court sentenced Appellant to one and one-half to five

years’ imprisonment, followed by two years of special probation.

        The Lackawanna County Department of Probation and Parole filed a

petition alleging that Appellant violated conditions one and four of his special

probation/parole conditions. Specifically, the petition alleged that Appellant

relocated from Lackawanna County to Florida without prior approval.             In

addition, the petition charged that Appellant violated a probationary

condition that required him to comply with all municipal, state, and federal

laws.     The petition alleged that on August 26, 2014, the Sheriff’s

Department of Osceola County, Florida arrested Appellant and charged him

with theft and resisting arrest.        Appellant pled guilty to both offenses and

was sentenced on October 16, 2014 to time served.

        At a Gagnon II2 hearing on January 14, 2015, Appellant stipulated to

these violations and received a revocation sentence of one and one-half to

three years’ imprisonment in a state correctional institution, followed by two

years of special probation. Order, 1/14/15. At sentencing, the revocation

court explained that it imposed a sentence of total incarceration in this case

because of the number of violations Appellant committed during the course

of his probation, as well as Appellant’s convictions for new offenses in


____________________________________________


2
    Gagnon v. Scarpelli, 411 U.S. 778 (1973).



                                           -2-
J-S49036-15



Florida. Appellant moved for reconsideration of his sentence on January 14,

2015 and the trial court denied his request by order entered on January 20,

2015. Order, 1/20/15. This timely appeal followed.3

       On appeal, counsel filed a purported Anders brief in this Court and an

accompanying application to withdraw as counsel.            The Anders brief

presents two potential issues for our review:

         Whether the [revocation] court imposed an inappropriately
         harsh and excessive sentence, which constituted an abuse
         of discretion?

         Whether the [revocation] court failed to take into
         consideration [Appellant’s] rehabilitation needs when it
         imposed its sentence?

Appellant’s Brief at 4 (complete capitalization omitted).

       Before addressing the merits of the underlying issue that
       [Appellant] presents for our review, we first must pass upon
____________________________________________


3
   Appellant filed a pro se notice of appeal on January 14, 2015. Although
Appellant’s pro se filing represents a violation of the policy against hybrid
representation and a departure from conventional practice, our Supreme
Court previously held that a revoked probationer's premature pro se notice
of appeal does not divest a trial court of jurisdiction to act upon a timely
post-sentence motion later filed by defense counsel. Commonwealth v.
Cooper, 27 A.3d 994, 1007 (Pa. 2011) (“The proper way to view [such a]
pro se appeal [] is as a premature appeal that was perfected upon the trial
court's proper consideration and denial of the counseled post-sentence
motions.”). Hence, Appellant’s pro se submission does not foreclose our
review.    By order dated February 11, 2015, the trial court appointed
appellate counsel and directed the filing of a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely
filed his concise statement, which included both issues listed in the Anders
brief. As yet, the court has not issued its opinion pursuant to Pa.R.A.P.
1925(a).



                                           -3-
J-S49036-15


      counsel's petition to withdraw as counsel. Commonwealth v.
      Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc).
      Prior to withdrawing as counsel on a direct appeal under
      Anders, counsel must file a brief that meets the requirements
      established by our Supreme Court in Commonwealth v.
      Santiago, 978 A.2d 349, 361 (Pa. 2009). The brief 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. Counsel also must provide a copy
      of the Anders brief to the appellant. Attending the brief must
      be a letter that advises the appellant of his or her 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); see Commonwealth v. Daniels,
      999 A.2d 590, 594 (Pa. Super. 2010); Commonwealth v.
      Millisock, 873 A.2d 748, 751–752 (Pa. Super. 2005).

Commonwealth v. Harden, 103 A.3d 107, 110 (Pa. Super. 2014).

      Our review of counsel's petition to withdraw and the accompanying

brief reveals that counsel substantially complied with Santiago’s procedural

requirements. The Anders brief provides a factual and procedural history

detailing the events relevant to the instant appeal, along with appropriate

citations.   Anders Brief 5–6.       The Anders brief also identifies two


                                     -4-
J-S49036-15


discretionary sentencing claims that Appellant seeks to raise on appeal: a

claim alleging that the revocation court abused its discretion in imposing an

excessive sentence and a claim alleging an abuse of discretion stemming

from the court’s alleged failure to consider Appellant’s rehabilitative needs in

fixing his sentence.    Id. at 4. Counsel addresses the applicable facts and

pertinent principles of law, ultimately concluding that this claim would be

frivolous. Id. at 7 and 12–15. Although counsel’s application to withdraw

omitted language describing the nature of counsel’s review of the record and

setting forth her conclusion that any appeal would be wholly frivolous, see

Petition to Withdraw as Counsel, 5/22/15, counsel included this language in

the Anders brief and in her letter forwarding the brief and withdrawal

application to Appellant.    Anders Brief at 7 (“Upon receiving a briefing

schedule, present counsel made a conscientious examination of the record

and ultimately determined an appeal would be wholly frivolous.”); Letter,

5/22/15 (“After a thorough review of the record, I have determined that any

appeal would be frivolous.”).

      Additionally, in accordance with Nischan, counsel forwarded Appellant

a copy of the Anders brief and a letter informing him that he has the right

to hire a new attorney, to proceed with an appeal on his own, and to raise

any additional points that he thinks are worthy of this Court's attention.

Letter, 5/22/15.       Accordingly, counsel substantially complied with the




                                     -5-
J-S49036-15


requirements set forth in Nischan, 928 A.2d at 353. See also Millisock,

873 A.2d at 751–752.

       We turn now to an independent review of the record to determine

whether the issues identified by Appellant in this appeal are, as counsel

claims, wholly frivolous, or if there are any other meritorious issues present

in this case. Santiago, 978 A.2d at 354, quoting Anders, 386 U.S. at 744

(“[T]he court—not counsel—then proceeds, after a full examination of all the

proceedings, to decide whether the case is wholly frivolous. If it so finds, it

may grant counsel's request to withdraw.”).

       The   two     issues     identified   in   the   Anders    brief   challenge    the

discretionary aspects of Appellant’s revocation sentence.4 “[S]entencing is a

matter vested in the sound discretion of the sentencing judge, whose

judgment      will   not   be     disturbed       absent   an   abuse     of   discretion.”

Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 2001).

Moreover, pursuant to statute, Appellant does not have an automatic right to

appeal the discretionary aspects of his sentence.                   See 42 Pa.C.S.A.

§ 9781(b).     Instead, Appellant must petition this Court for permission to

appeal the discretionary aspects of his sentence. Id.

____________________________________________


4
  It is now well-settled that we may consider discretionary challenges to a
revocation sentence. Commonwealth v. Cartrette, 83 A.3d 1030, 1034
(Pa. Super. 2013) (en banc) (“[W]e unequivocally hold that this Court's
scope of review in an appeal from a revocation sentencing includes
discretionary sentencing challenges.”).



                                             -6-
J-S49036-15


      As this Court explained:

      [t]o reach the merits of a discretionary sentencing issue, we
      conduct a four-part analysis to determine:           (1) whether
      appellant has filed a timely notice of appeal, Pa.R.A.P. 902, 903;
      (2) whether the issue was properly preserved at sentencing or in
      a motion to reconsider and modify sentence, Pa.R.Crim.P. 720;
      (3) whether appellant’s brief has a fatal defect, Pa.R.A.P.
      2119(f); and (4) whether there is a substantial question that the
      sentence appealed from is not appropriate under the Sentencing
      Code, [42 Pa.C.S.A.] § 9781(b).

Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).

      Here, Appellant filed a timely notice of appeal and preserved his claims

by filing a timely reconsideration motion and a concise statement pursuant

to Rule 1925(b) alleging that his sentence was excessive and that certain

environmental circumstances were not fully developed for the court’s

consideration.   Appellant’s brief also includes a statement pursuant to

Pa.R.A.P. 2119(f).      Thus, we turn to whether the appeal presents a

substantial question.

      As we explained:

      The determination of whether a particular case raises a
      substantial question is to be evaluated on a case-by-case basis.
      Generally, however, in order to establish that there is a
      substantial question, the appellant must show actions by the
      sentencing court inconsistent with the Sentencing Code or
      contrary to the fundamental norms underlying the sentencing
      process.


Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (internal

citations omitted).   Section 9721 expresses these general principles in the

following manner:


                                     -7-
J-S49036-15


      the sentence imposed should call for confinement that is
      consistent with the protection of the public, the gravity of the
      offense as it relates to the impact on the life of the victim and on
      the community, and the rehabilitative needs of the defendant.

42 Pa.C.S.A. § 9721(b).     “In determining whether a substantial question

exists, this Court does not examine the merits of the sentencing claim.”

Cartrette, 83 A.3d at 1042, citing Commonwealth v. Tuladziecki, 522

A.2d 17 (Pa. 1987).

      As stated above, Appellant raises two discretionary challenges on

appeal:   a claim alleging that the revocation court abused its discretion in

imposing an excessive sentence and a claim alleging an abuse of discretion

arising from the court’s alleged failure to consider Appellant’s rehabilitative

needs.    In his Rule 2119(f) statement, Appellant refers to his excessive

sentence claim without detailed elaboration. This Court previously held that

“a bald assertion that a sentence is excessive does not by itself raise a

substantial question justifying this Court's review of the merits of the

underlying claim.”    Commonwealth v. Harvard, 64 A.3d 690, 701 (Pa.

Super. 2013) (quotation omitted), appeal denied, 77 A.3d 636 (Pa. 2013).

As for his second contention, Appellant nowhere mentions his rehabilitative

needs claim in his Pa.R.A.P. 2119(f) statement.       Thus, although we have

held that the failure to consider the sentencing factors delineated in 42

Pa.C.S. § 9721(b) raises a substantial question, Catrette, 83 A.3d at 1042,

Appellant’s failure to mention this claim in his Pa.R.A.P. 2119(f) statement

leads us to conclude that he has waived appellate review of this issue.

                                     -8-
J-S49036-15


        Moreover, even if we were to reach the merits of Appellant’s claims

pursuant to our duty to review the record independently, we agree with

counsel that Appellant’s issues are wholly frivolous. At sentencing, the court

provided its reasons for Appellant's sentence. It set forth a lengthy list of

parole and probations committed by Appellant, including: curfew violations,

failure to maintain employment, failure to notify authorities of change in

status, positive urine analysis, and incarceration. N.T. Sentencing, 1/14/15,

at 4.      The court also was aware that Appellant recently relocated

out-of-state without permission and incurred new charges in violation of the

conditions of his probation.   The record reveals that the sentencing court

properly and adequately considered the factors included in 42 Pa.C.S.A.

§ 9721(b).    Hence, no relief is due on Appellant’s discretionary sentencing

challenges.

        Judgment of sentence affirmed.     Application to withdraw as counsel

granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2015




                                     -9-
