J-S69021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                               OF
                                                          PENNSYLVANIA


                        v.

    KELLY DONAHUE

                             Appellant                  No. 509 WDA 2017


            Appeal from the Judgment of Sentence February 21, 2017
               In the Court of Common Pleas of Jefferson County
              Criminal Division at No(s): CP-33-CR-0000534-2002


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

MEMORANDUM BY RANSOM, J.:                             FILED JANUARY 3, 2018

        Appellant, Kelly Donahue, appeals from the judgment of sentence

entered February 21, 2017, which was imposed after the revocation of

Appellant’s probation.       Additionally, Appellant’s counsel, Mark A. Wallisch,

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.

        The procedural history of the instant matter is convoluted. On March

18, 2003, Appellant entered a guilty plea to one count of driving under the

influence – second offense and one count of fleeing or attempting to elude.1
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   See 75 P.S. §§ 3731(a)(1) and 3733(a), respectively.
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That same day, Appellant received an aggregate sentence of one to two years

of incarceration followed by two years of probation, to be served consecutive

to a sentence on a separate docket in Clearfield County.2       See Notes of

Testimony (N.T.), 9/23/2003, at 6-7; see also CP-17-CR-000453-2002.

Appellant did not timely file a direct appeal in the instant DUI, but on

September 9, 2003, filed a pro se petition seeking relief under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9545.         Ultimately, the

litigation of this petition was not successful.

       Appellant was released from prison in February 2016, though it is

unclear as to his parole or probation status at that time. However, it is clear

from the notes of testimony that at that time, probation had not yet begin on

his 2003 DUI case. In October 2016, a detainer was issued for his arrest due

to new charges.3 In November 2016, Appellant appeared for a Gagnon I4

hearing without counsel. Final disposition was scheduled for a later date.



____________________________________________



2 Appellant had been incarcerated on charges in another case.    See
Commonwealth v. Donahue, 981 A.2d 310 (Pa. Super. 2009) (unpublished
memorandum).

3 Appellant was convicted of public drunkenness in Berks County and false
identification to law enforcement in York County in October 2016. See N.T.,
2/21/17, at 3.

4See Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (concluding that due
process requires parolee be given a preliminary (Gagnon I) and final
(Gagnon II) hearing prior to parole revocation).


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       On February 21, 2017, the court held a Gagnon II hearing. At that

hearing, the court took judicial notice of Appellant’s plea and sentence for

public drunkenness in Berks County and his plea and sentence for false

identification to law enforcement in York County. See N.T., 2/21/17, at 3.

The court noted that although Appellant had not yet started his probation on

the 2003 sentence due to the time taken to complete the Clearfield County

sentence, it would sentence him for pre-probation activity as Appellant had

received new charges. Id. at 3-4. At the conclusion of the hearing, the court

revoked Appellant’s probation and re-sentenced Appellant to six months to

two years of incarceration with credit for time served from October 14, 2016,

consecutive to Appellant’s other sentences, i.e. the Berks and York County

sentences. Id.

       Appellant pro se timely filed a notice of appeal, and appointed counsel

filed a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on

appeal. The trial court issued a responsive opinion.

       In this Court, Appellant’s counsel has filed an Anders brief, asserting a

single issue that Appellant might seek to raise: whether the trial court abused

its discretion in sentencing Appellant. See Appellant’s Brief at 6.   Appellant

also questions whether there are any non-frivolous issues preserved on

appeal.5 Id.

____________________________________________


5Although initially phrased as a question, counsel later concludes there are
no non-frivolous issues preserved on appeal. See Appellant’s Brief at 4, 9-
10.

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      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 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



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overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250

(Pa. Super. 2015) (citations and footnote omitted).

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

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

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 Wallisch 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 9-10.   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

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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).

      Appellant timely filed a notice of appeal but did not preserve this issue

at sentencing or in a post-sentence motion. Accordingly, we may not reach

the merits of his issue. See Leatherby, 116 A.3d at 83.

      In short, we agree with Attorney Wallisch 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 affirm

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

      Petition to withdraw granted.        Judgment of sentence affirmed.

Jurisdiction relinquished.

      Judge Bowes joins memorandum.

      P.J.E. Stevens concurs in result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/3/2018




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