J-S59016-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                  Appellee              :
                                        :
             v.                         :
                                        :
MARK ANTHONY DONAHUE,                   :
                                        :
                  Appellant             :   No. 2085 WDA 2014

            Appeal from the Judgment of Sentence March 27, 2014,
                     Court of Common Pleas, Erie County,
               Criminal Division at No. CP-25-CR-0001040-2013

BEFORE: BOWES, DONOHUE and FITZGERALD*, JJ.

MEMORANDUM BY DONOHUE, J.:                    FILED SEPTEMBER 24, 2015

     Mark Anthony Donahue (“Donahue”) appeals from the judgment of

sentenced entered following his convictions of six counts of retail theft and

one count of driving under the influence (”DUI”).       His court-appointed

counsel (“Counsel”) has filed a petition seeking to withdraw and a brief in

support thereof pursuant to Anders v. California, 386 U.S. 738 (1967) and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).             Following our

review, we affirm the judgment of sentence and grant Counsel’s motion to

withdraw.

     A request by appointed counsel to withdraw pursuant to Anders and

Santiago gives rise to certain requirements and obligations, for both

appointed counsel and this Court. Commonwealth v. Flowers, 113 A.3d

1246, 1248 (Pa. Super. 2015).




*Former Justice specially assigned to the Superior Court.
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          These requirements and the significant protection
          they provide to an Anders appellant arise because a
          criminal defendant has a constitutional right to a
          direct appeal and to counsel on that appeal.
          Commonwealth v. Woods, 939 A.2d 896, 898 (Pa.
          Super. 2007). This Court has summarized these
          requirements as follows:

              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.

          Woods, 939 A.2d at 898 (citations omitted).

          There are also requirements as to the precise
          content of an Anders brief:

              [T]he Anders brief that accompanies court-
              appointed counsel’s petition to withdraw ...
              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.



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             Santiago, 978 A.2d at 361.

Id.    If this Court determines that appointed counsel has met these

obligations, it is then our responsibility “to make a full examination of the

proceedings and make an independent judgment to decide whether the

appeal is in fact wholly frivolous.” Id. In so doing, we review not only the

issues identified by appointed counsel in the Anders brief, but examine all

of the proceedings to “make certain that appointed counsel has not

overlooked the existence of potentially non-frivolous issues.” Id.

      Counsel has satisfied the procedural requirements of Anders and

Santiago. She has filed a petition seeking to withdraw with this Court, in

which she states her belief that after an examination of the record, the

appeal is wholly frivolous. Attached to that petition is a copy of the letter

she sent to Donahue, which indicates that she enclosed copies of her petition

to withdraw and Anders brief and advises Donahue that he can retain new

counsel or proceed pro se to raise with this Court any additional points he

deems worthy. Further, the content of Counsel’s Anders brief conforms to

the Santiago requirements previously set forth. Accordingly, we undertake

our independent review to determine whether Donahue’s appeal is wholly

frivolous.

      On February 4, 2014, Donahue pled guilty to the above-mentioned

offenses.    On each theft conviction, the trial court imposed a sentence of




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nine months to two years of incarceration.1 On the DUI conviction, the trial

court imposed a sentence of three to six months of incarceration. The trial

court ordered all sentences to run consecutively, resulting in an aggregate

sentence of five years, six months to fourteen years, six months of

incarceration. This timely appeal follows.

      Counsel presents one issue of arguable merit: “Whether [Donahue’s]

sentence is manifestly excessive, clearly unreasonable and inconsistent with

the objectives of the Sentencing Code?” Anders Brief at 3. This is a claim

addressed to the discretionary aspects of Donahue’s sentence.            The

discretionary aspects of a sentence are not appealable as of right.

Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). Before

we may review the merits of a challenge to the discretionary aspects of a

sentence, we must determine: (1) whether appellant has filed a timely 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.A. § 9781(b).   Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.

Super. 2006), appeal denied, 909 A.2d 303 (Pa. 2006).




1
  For these convictions, nine months was at the top of the standard guideline
range and two years was the statutory maximum. See N.T., 3/27/14, at 14.


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      The record reveals that Donahue’s appeal was timely filed. It further

reveals, however, that Donahue did not raise this issue at the time of

sentencing and did not file post-sentence motions.2 Accordingly, he did not

preserve this issue and so it has been waived for purposes of appeal. See

id. at 533-34 (“Objections to the discretionary aspects of a sentence are

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

a motion to modify the sentence imposed at that hearing.”). We therefore

agree with Counsel that it would the frivolous to raise this issue on appeal.

      In conformance with our duties, we have reviewed the record in its

entirety. Our independent review of the record does not reveal any issue that

would arguably support an appeal. Accordingly, we grant Counsel’s petition

and affirm Donahue’s judgment of sentence.

      Judgment of sentence affirmed. Petition to withdraw granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/24/2015


2
  For completeness, we note that Donahue sought permission to file his
appeal nunc pro tunc. The trial court granted his request, and Donahue then
timely filed his notice of appeal. Trial Court Order, 12/9/14; Notice of
Appeal, 12/22/14. Donahue did not seek permission to file post-sentence
motions nunc pro tunc.


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