J-S78019-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ROBERT JONATHAN ROE

                            Appellant               No. 1045 MDA 2014


              Appeal from the Judgment of Sentence May 21, 2014
              In the Court of Common Pleas of Lackawanna County
                Criminal Division at No(s): CP-35-0001417-2013
                                           CP-35-0003374-2009


BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                        FILED JANUARY 09, 2015

        Appellant Robert Roe appeals from the judgment of sentence entered

in the Lackawanna County Court of Common Pleas. Roe’s counsel filed an

Anders1 brief and a petition to withdraw as counsel.         We affirm the

judgment of sentence and grant counsel’s petition to withdraw.

        On March 23, 2010, Roe pled guilty to delivery of a controlled

substance.2      The trial court sentenced him to 24 months’ intermediate

punishment with the first three months to be served under house arrest.3
____________________________________________


1
    Anders v. California, 386 U.S. 738 (1967).
2
    35 P.S. § 780-113(a)(30).
3
  The March 2010 conviction and sentence are docketed at No. CP-35-
0003374-2009.
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       On August 12, 2013, Roe pled guilty to possession of a small amount

of marijuana.4       Because of this new charge, Roe received a notice of

violation of the intermediate punishment imposed for his March 2010

conviction.

       On November 4, 2013, the court held a sentencing hearing for the

August 2013 conviction and a Gagnon II5 hearing for the March 2010

conviction.    Roe stipulated that he violated the probation imposed for the

March 2010 conviction. The sentencing court revoked the sentence imposed

for the March 2010 conviction and resentenced Roe to four years’ restrictive

intermediate punishment (“RIP”) with the first 90 days to be spent in prison

followed by 90 days’ house arrest.             For the August 2013 conviction, the

court sentenced Roe to one month of probation consecutive to the sentence

imposed for the March 2010 conviction.

       On February 10, 2014, Roe tested positive for opiates and was

charged with violating a condition of the probation imposed for both prior

convictions.




____________________________________________


4
 35 P.S. § 780-113(a)(31). This conviction and sentence is docketed at No.
CP-35-0001417-2013. Although Roe included both docket numbers in his
notice of appeal, he does not challenge the sentence received at docket No.
CP-35-0001417-2013.
5
  Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656
(1973).



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        On May 21, 2014, the court held a Gagnon II hearing. Roe admitted

he violated a condition of probation. The court revoked his RIP sentence for

the March 2010 conviction and resentenced Roe to 2 ½ to 5 years’

incarceration.6 Order, 5/21/2014. The court revoked and reinstated Roe’s

sentence for the August 2013 conviction. Id.

        On June 2, 2014, Roe filed a motion for reconsideration of sentence,

seeking permission to participate in the Salvation Army Rehabilitation

Program.      Petition for Reconsideration of Sentence, 6/2/2014, at ¶¶ 8-14.

The court denied this motion on June 4, 2014.         On June 19, 2014, Roe

appealed. On August 14, 2014, Roe’s counsel filed a statement pursuant to

Pennsylvania Rule of Appellate Procedure 1925(b).       The trial court did not

file a 1925(a) Opinion.         On September 29, 2014, Roe’s counsel filed a

petition to withdraw       and an Anders brief.   Counsel sent a copy of both

documents to Roe.        Letter to Appellant, September 26, 2014, attached as

Exh. A to the Petition to Withdraw as Counsel [hereinafter Letter to

Appellant].

        Because Roe’s counsel filed a petition to withdraw pursuant to Anders

and its Pennsylvania counterpart, Commonwealth v. Santiago,7 we must
____________________________________________


6
   The sentencing court initially sentenced Roe to 2 1/2 to 6 years’
incarceration and 2 years’ probation. On May 21, 2014, the court revoked
this sentence because it exceeded the maximum sentence allowed and
imposed a sentence of 2 1/2 to 5 years’ incarceration.
7
    978 A.2d 349 (Pa.2009).



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address counsel’s petition before reviewing the merits of Roe’s underlying

issues. 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 the

Pennsylvania Supreme Court in Santiago. 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 must also provide a copy of the

Anders brief to the appellant, together with 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).     Substantial compliance with these requirements is

sufficient.    Commonwealth        v.   Wrecks,    934    A.2d   1287,      1290

(Pa.Super.2007). “After establishing that the antecedent requirements have

been met, this Court must then make an independent evaluation of the

record to determine whether the appeal is, in fact, wholly frivolous.”

Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.2006).

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     Roe’s counsel filed a petition to withdraw as counsel.      The petition

states counsel engaged in a thorough review of the record and the law in

this matter and determined that any appeal would be frivolous. Petition to

Withdraw as Counsel, at ¶ 8; Letter to Appellant. Counsel notified Roe of

the withdrawal request, supplied him with copies of the petition to withdraw

and the Anders brief, and sent Roe a letter explaining his right to proceed

pro se or with new, privately-retained counsel to raise any additional points

or arguments that Roe believed had merit. See Petition; Letter to Appellant.

In the Anders brief, counsel provides a summary of the facts and procedural

history of the case with citations to the record, refers to evidence of record

that might arguably support the issues raised on appeal, provides citations

to relevant case law, states her conclusion that the appeal is wholly

frivolous, and states her reasons for concluding the appeal is frivolous.

Accordingly, counsel has substantially complied with the requirements of

Anders and Santiago.

     Appellant has not filed a pro se brief or a counseled brief with new,

privately-retained counsel. We, therefore, review this appeal based on the

issues of arguable merit raised in the Anders brief:

        A. Whether the lower court failed to take into consideration
        Appellant’s rehabilitation needs when it imposed its
        sentence?

        B. Whether the sentence imposed in [CP-35-0003374-
        2009] was inappropriately harsh and excessive and an
        abuse of discretion for a technical violation of his RIP
        punishment?


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         C. Whether the lower court failed to state on the record
         the reasons for the sentence imposed in [CP-35-0003374-
         2009] as required?

Anders Brief at 5.

      The issues raise challenges to the discretionary aspects of Roe’s

sentence. “Challenges to the discretionary aspects of sentencing do not

entitle a petitioner to review as of right.”   Commonwealth v. Allen, 24

A.3d 1058, 1064 (Pa.Super.2011) (citing Commonwealth v. Sierra, 752

A.2d 910, 912 (Pa.Super.2000)).          Before this Court can address a

discretionary challenge, an appellant must comply with the following

requirements:

            An appellant challenging the discretionary aspects of
            his sentence must invoke this Court’s jurisdiction by
            satisfying a four-part test: (1) whether appellant has
            filed a timely notice of appeal, see Pa.R.A.P. 902 and
            903; (2) whether the issue was properly preserved
            at sentencing or in a motion to reconsider and
            modify sentence, see 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.

Allen, 24 A.3d at 1064.

      Roe filed a timely notice of appeal and included a statement of reasons

pursuant to Rule 2119(f) in his brief. He, however, waived his second and

third issues because he failed to preserve them in a post-sentence motion.

See Allen, 24 A.3d at 1064; Commonwealth v. Lebarre, 961 A.2d 176,




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178 (Pa.Super.2008) (challenge to the discretionary aspects of sentence

waived if appellant does not raise it in a post-sentence motion).

       To the extent Roe’s motion for reconsideration of sentence preserved

his first issue, i.e., “[w]hether the lower court failed to take into

consideration     Appellant’s     rehabilitation   needs   when   it   imposed   its

sentence,”8 the claim fails to raise a substantial question.

       “The determination of whether a particular issue raises a substantial

question is to be evaluated on a case-by-case basis.” Commonwealth v.

Dunphy, 20 A.3d 1215, 1220 (Pa.Super.2011) (quoting Commonwealth v.

Fiascki, 886 A.2d 261, 263 (Pa.Super.2005)). A substantial question exists

where a defendant raises a plausible argument that the sentence violates a

provision of the sentencing code or is contrary to the fundamental norms of

the sentencing process. Id. (quoting Commonwealth v. Titus, 816 A.2d

251, 255 (Pa.Super.2003)).

       Roe’s claim that the court failed to consider his rehabilitative needs

does not state a substantial question.             See, e.g., Commonwealth v.

Griffin, 65 A.3d 932, 936-37 (Pa.Super.2013) (collecting cases that find




____________________________________________


8
  The petition for reconsideration of sentence requested permission to
participate in the Salvation Army Rehabilitation Program and stated Roe “is a
product of particular circumstances and conditions of environment, but that
these matters were not fully and completely expressed at the time of
sentencing.” Petition for Reconsideration of Sentence, at ¶¶ 8-14.



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failure to consider rehabilitative needs does not present substantial

question). Accordingly, we cannot review the claim.

      In conclusion, we cannot review Roe’s claim that the court failed to

consider his rehabilitative needs because the issue fails to raise a substantial

question for our review.    See Allen, 24 A.3d at 1064.        In addition, he

waived his claim that the sentence imposed was harsh and excessive and his

claim that the trial court failed to state its reasons on the record because he

failed to raise these issues in a post-sentence motion. See id.

      Further, our independent review of the record has revealed no non-

frivolous claims that Roe could have raised, and we agree with counsel that

this appeal is wholly frivolous. Accordingly, we affirm the judgment of

sentence.

      Judgment of sentence affirmed.       Counsel’s petition to withdraw is

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/9/2015




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