J-S35026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             IN THE SUPERIOR COURT OF
                                               PENNSYLVANIA


                v.

JOHN PATRICK AROSE

                     Appellant               No. 1726 WDA 2016


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


COMMONWEALTH OF PENNSYLVANIA             IN THE SUPERIOR COURT OF
                                               PENNSYLVANIA


                v.

JOHN PATRICK AROSE

                     Appellant               No. 1727 WDA 2016


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


COMMONWEALTH OF PENNSYLVANIA             IN THE SUPERIOR COURT OF
                                               PENNSYLVANIA


                v.

JOHN PATRICK AROSE

                     Appellant               No. 1728 WDA 2016


      Appeal from the Judgment of Sentence September 22, 2014
J-S35026-17


               in the Court of Common Pleas of Jefferson County
              Criminal Division at No(s): CP-33-CR-0000139-2014


BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.:                              FILED JULY 26, 2017

       Appellant, John Patrick Arose, appeals from the judgment of sentence

entered September 22, 2014, which was imposed after the revocation of

Appellant’s probation on the above dockets.1         Additionally, Appellant’s

counsel, George Daghir, Esq., seeks to withdraw his representation of

Appellant pursuant to Anders v. California, 87 S. Ct. 1936 (1967), and

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

grant counsel’s petition to withdraw.

       In September 2008, at docket number CP-33-CR-0000590-2007,

Appellant pleaded guilty to one count of manufacture of a controlled

substance2 and was sentenced to five years of restricted intermediate

punishment.      This sentence was to include three months in jail and six

months on electronic monitoring. That same day, at docket number CP-33-

CR-0000591-2007, Appellant pleaded guilty to possession with intent to




____________________________________________


*
  Former Justice specially assigned to the Superior Court.
1
  As will be discussed further herein, Appellant’s post-sentence and appellate
rights were reinstated following the filing of a timely petition seeking
collateral relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541-9546.
2
  35 P.S. § 780-113(a)(30).



                                           -2-
J-S35026-17



deliver a controlled substance3 and received a sentence of three years of

probation, concurrent to the sentence at the previous docket.

        In January 2009, Appellant violated his intermediate punishment and

was sentenced to an additional thirty days in jail with drug treatment. In

February 2011, Appellant received new criminal charges, and a previous

sentence of intermediate punishment, at CP-33-CR-0000170-2006, was

revoked.     Appellant was sentenced to a term of three to seven years of

incarceration.       At    CP-33-CR-0000590-2007,         Appellant’s   intermediate

punishment was revoked, and he received a sentence of three years of

probation consecutive to the sentence at CP-33-CR-170-2006.               At CP-33-

0000591-2007, Appellant’s probation was revoked, and he received a

sentence of three years of probation consecutive to the sentence at CP-33-

0000590-2007.

        In June 2014, Appellant entered a negotiated guilty plea to one count

of possession of drug paraphernalia4 at CP-33-CR-0000139-2014 and

sentenced to one year of probation.              While on probation, Appellant was

again convicted of new, drug-related charges, for which he received a three-

to twelve-month county sentence, with a consecutive one year of probation.

        As a result of the above, on September 22, 2014, Appellant was re-

sentenced at dockets CP-33-CR-0000590-2007, CP-33-CR-0000591-2007,

____________________________________________


3
    35 P.S. § 780-113(a)(30).
4
    35 P.S. § 780-113(a)(32).



                                           -3-
J-S35026-17



and CP-33-CR-0000139-2014.        He received an aggregate sentence of five

and one-half to eleven years of state incarceration. Appellant filed a motion

for reconsideration on October 22, 2014, which the court denied. Appellant

timely appealed, and this Court affirmed his judgment of sentence, as

Appellant had not preserved his discretionary sentencing challenge in a

timely post-sentence motion.     See Commonwealth v. Arose, 122 A.3d

1144 (Pa. Super. 2015) (unpublished memorandum).               The panel also

granted counsel’s motion to withdraw pursuant to Anders. Id.

      In May 2016, Appellant pro se timely filed a petition seeking PCRA

relief. Counsel was appointed and filed an amended petition on Appellant’s

behalf.   Following an evidentiary hearing, the trial court denied the claims

raised pro se in Appellant’s PCRA petition but reinstated Appellant’s post-

sentence and appellate rights.

      On October 20, 2016, Appellant filed a motion to modify his

September 22, 2014 sentences.          The trial court denied the motion.

Appellant timely appealed.       Instead of filing a statement of errors

complained of on Appellant’s behalf, counsel filed a notice of intent to file an

Anders brief.

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

the merits of any possible underlying issues without first examining

counsel’s request to withdraw.     Commonwealth v. Goodwin, 928 A.2d

287, 290 (Pa. Super. 2007) (en banc). Prior to withdrawing as counsel on

direct appeal under Anders, counsel must file a brief that meets the

                                     -4-
J-S35026-17



requirements established by the Pennsylvania Supreme Court in Santiago,

namely:

     (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 his
     client. 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).

Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).

After determining that counsel has satisfied these technical requirements of

Anders and Santiago, only then may this Court “conduct an independent

review of the record to discern if there are any additional, non-frivolous

issues overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d

1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).

     In the instant matter, Attorney Daghir’s Anders brief complies with

the above-stated requirements.    Namely, he includes a summary of the

                                   -5-
J-S35026-17



relevant factual and procedural history; he refers to the portions of the

record that could arguably support Appellant’s claims; and he sets forth his

conclusion that Appellant’s appeal is frivolous.   He explains his reasoning

and supports his rationale with citations to the record as well as pertinent

legal authority. Attorney Daghir avers he has supplied Appellant with a copy

of his Anders brief and a letter explaining the rights enumerated in

Nischan.      Accordingly,   counsel   has   complied    with     the   technical

requirements for withdrawal. Thus, we may independently review the record

to determine if the issues Appellant raises are frivolous and to ascertain if

there are other non-frivolous issues he may pursue on appeal.

     The sole issue counsel potentially raises on Appellant’s behalf is a

challenge to the discretionary aspects of his sentence. See Appellant’s Brief

at 10-14. A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal.     See Commonwealth v.

Coulverson, 34 A.3d 135, 142 (Pa. Super. 2011); see also Pa.R.A.P.

2119(f). This Court conducts a four-part analysis to determine: (1) whether

Appellant has timely filed a notice of appeal; (2) whether the issue was

properly preserved at sentencing or in a motion to reconsider and modify

sentence; (3) whether Appellant’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,    42   Pa.C.S.    §    9781(b).

Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (citation

omitted).

                                    -6-
J-S35026-17



      Appellant timely filed a notice of appeal, preserved his issues in a

motion for reconsideration, has provided this Court with the requisite notice

to Appellant, and has included in his brief a statement pursuant to Pa.R.A.P.

2119(f).     See Appellant’s Brief at 9.   The statement contends that the

sentence     was   unreasonably   excessive,   an   abuse   of   discretion,   and

constituted too severe a punishment. Id.

      A claim that a sentence is manifestly excessive many raise a

substantial question if Appellant’s Pa.R.A.P. 2119(f) statement sufficiently

articulates the manner in which the sentence was inconsistent with the Code

or contrary to its norms. Commonwealth v. Mouzon, 812 A.2d 617, 627-

28 (Pa. 2002). Appellant does not identify a specific provision of the Code

with which the sentence was inconsistent. Thus, we cannot conclude, based

on the record, that the sentencing court in any way imposed a harsh and

excessive sentence that was disproportionate to the underlying violations

and circumstances. See Commonwealth v. Kalichak, 943 A.2d 285, 292

(Pa. Super. 2008) (noting that a claim a sentence was harsh and excessive

based on personal circumstances is meritless where the court takes into

account but rejects personal circumstances as a mitigating factor, and places

its reasons for the sentencing on the record).

      In short, we agree with Attorney Daghir that Appellant’s issue is

frivolous.   We have independently reviewed the record and find no other

issues of arguable merit that he could pursue on appeal.         Accordingly, we




                                     -7-
J-S35026-17



affirm Appellant’s judgment of sentence and grant counsel’s petition to

withdraw.

     Petition to withdraw granted. Judgment of sentence affirmed.

     Judge Lazarus joins the memorandum.

     President Judge Emeritus Stevens concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/2017




                                   -8-
