J-S42039-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

DAVID HOBAI

                               Appellant              No. 1747 WDA 2015


             Appeal from the Judgment of Sentence October 6, 2015
         in the Court of Common Pleas of Erie County Criminal Division
                       at No(s): CP-25-CR-0000916-2001

BEFORE: SHOGAN, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:               FILED: August 24, 2016

        Appellant, David Hobai, appeals from the judgment of sentence

imposed following a violation-of-probation hearing and his underlying April

12, 2001 guilty plea for retail theft.1 Appellant’s counsel has filed a petition

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

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), with this Court.

We grant counsel’s petition and affirm the judgment of sentence.

        We summarize the facts as set forth by a prior panel of this Court:

              On March 8, 2001, [Appellant] pled guilty at Docket No.
           314 of 2001 to one count of Possession [of a controlled
           substance] by Misrepresentation, Fraud, Deception or
           Subterfuge. The charge resulted on December 6, 2000,
           after [Appellant] went into a cabinet at Saint Vincent
           Hospital in Erie, PA and obtained seven bottles of the drug

*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3929(a)(1).
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         Diazepam, which were later found in [Appellant’s] coat
         pocket.

            On March 8, 2001, [Appellant] was sentenced to ten
         (10) years [of] Restrictive Intermediate Punishment at
         Docket No. 314 of 2001. This sentence was imposed as
         part of [Appellant’s] admission into Erie County’s Drug
         Court on March 8, 2001.

             On April 12, 2001, [Appellant] pled guilty at Docket No.
         916 of 2001 to an earlier charge of Retail Theft. On
         December 1, 2000, [Appellant] stole a Dewalt Cordless
         drill from [the] Home Depot Store located in Erie, Pa. As
         part of [Appellant’s] prior admission into Drug Court,
         [Appellant] received a sentence of five (5) years [of]
         probation consecutive to Count 1 at Docket No. 314 of
         2001.

            On January 22, 2003, [Appellant’s] intermediate
         punishment and probation sentences were revoked.
         [Appellant] received two (2) years to ten (10) years [of]
         incarceration at Docket No. 314 of 2001 followed by a
         consecutive sentence of five (5) years [of] probation re-
         imposed at Docket No. 916 of 2001.

Commonwealth v. Hobai, 566 & 577 WDA 2004, at 1-2 (Pa. Super. Nov.

8, 2004) (unpublished memorandum) (footnotes omitted).

      According to Appellant’s pro se “motion to [q]uash arrest warrant and

release formal detainer,” Erie County Probation Department filed a formal

detainer on June 25, 2015, which contended he failed to report to his

probation officer.   Appellant’s Mot. to [Q]uash Arrest Warrant and Release

Formal Detainer, 9/9/15,2 at 1.    Counsel was appointed.     On October 6,


2
 The motion was postmarked this date. See generally Commonwealth v.
Wilson, 911 A.2d 942, 944 n.2 (Pa. Super. 2006) (discussing prisoner
mailbox rule).



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2015, the court held a revocation of probation hearing and sentenced

Appellant   that    day    to   eleven-and-one-half   to    twenty-three   months’

imprisonment in Erie County prison for violating his probation.

      Appellant timely filed a post-sentence motion that requested a new

sentence of up to two years’ incarceration with the Pennsylvania Department

of Corrections instead of Erie County.        Appellant’s Mot. for Post Sentence

Relief, 10/8/15, at 1. The court denied Appellant’s post-sentence motion on

October 9, 2015. Appellant, while represented by counsel, also filed a pro se

motion to reconsider and modify sentence, which was forwarded to counsel

according   to     the   docket.    Appellant’s   counsel   timely   appealed   and

simultaneously filed a Pa.R.A.P. 1925(c)(4) statement of intent to file an

Anders brief.      Counsel subsequently filed a petition to withdraw with this

Court.

      “[T]his Court may not review the merits of the underlying issues

without first passing on the request to withdraw.”            Commonwealth v.

Garang, 9 A.3d 237, 240 (Pa. Super. 2010) (citation omitted).

         [T]he three requirements that counsel must meet before
         he or she is permitted to withdraw from representation
         [are] as follows:

            First, counsel must petition the court for leave to
            withdraw and state that after making a conscientious
            examination of the record, he has determined that
            the appeal is frivolous; second, he must file a brief
            refneerring to any issues in the record of arguable
            merit; and third, he must furnish a copy of the brief
            to the defendant and advise him of his right to retain



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             new counsel or to himself raise any additional points
             he deems worthy of the Superior Court’s attention.

Id. (citations omitted).

           [I]n the Anders brief that accompanies court-appointed
           counsel’s petition to withdraw, counsel 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.

           [I]n Pennsylvania, when counsel meets his or her
           obligations, “it then becomes the responsibility of the
           reviewing court to make a full examination of the
           proceedings and make an independent judgment to decide
           whether the appeal is in fact wholly frivolous.”

Id. at 355 n.5 (citation omitted).

        Instantly,   counsel’s   Anders   brief   summarized   the   factual   and

procedural history3 and referred to everything in the record that arguably

supports the appeal.       Counsel articulated the facts from the record, case

law, and statutes that led counsel to conclude that the appeal is frivolous.

Counsel furnished a copy of the brief to Appellant.       Counsel also advised

Appellant of his right to retain new counsel or to raise, pro se, any additional

points that he deems worthy of the Court’s consideration.            We find that


3
    Counsel did not cite to the record, however.




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Appellant’s counsel has substantially complied with all the requirements set

forth above. See id. at 361; Garang, 9 A.3d at 240. Therefore, we now

review the underlying issues on appeal.          See Santiago, 978 A.2d at 355

n.5.

        The Anders brief raises the following issue:

           Whether [A]ppellant’s sentence is manifestly excessive,
           clearly unreasonable and inconsistent with the objectives
           of the Sentencing Code?

Anders Brief at 3.4       Counsel asserts Appellant believes his sentence is

excessive and unreasonable. We hold Appellant is due no relief.

        This Court has stated that

              [c]hallenges to the discretionary aspects of
              sentencing do not entitle an appellant to appellate
              review as of right. Prior to reaching the merits of a
              discretionary sentencing issue:

                 [W]e conduct a four part analysis to
                 determine: (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, 42 Pa.C.S.A. §
                 9781(b).

           Objections to the discretionary aspects of a sentence are
           generally waived if they are not raised at the sentencing

4
    Appellant has not filed a pro se response.




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         hearing or raised in a motion to modify the sentence
         imposed at that hearing.

Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa. Super. 2006) (some

citations and punctuation omitted).

         [T]he Rule 2119(f) statement must specify where the
         sentence falls in relation to the sentencing guidelines and
         what particular provision of the Code is violated (e.g., the
         sentence is outside the guidelines and the court did not
         offer any reasons either on the record or in writing, or
         double-counted factors already considered). Similarly, the
         Rule 2119(f) statement must specify what fundamental
         norm the sentence violates and the manner in which it
         violates that norm . . . .

Commonwealth v. Googins, 748 A.2d 721, 727 (Pa. Super. 2000) (en

banc).

      Instantly, Appellant timely appealed.   See Evans, 901 A.2d at 533.

Appellant’s post-sentence motion, however, raised only a single claim: he

should be incarcerated with the Department of Corrections, and not Erie

County Prison. See Appellant’s Mot. for Post Sentence Relief, 10/8/15, at 1.

Appellant’s post-sentence motion did not assert that his sentence was

manifestly excessive and otherwise inconsistent with the Sentencing Code.

Appellant, therefore, has waived the issue. See Evans, 901 A.2d at 533-34.

Accordingly, we deny Appellant permission to appeal.        Our independent

review of the record reveals no other issue of arguable merit.          See

Santiago, 978 A.2d at 355 n.5. We conclude that the appeal is frivolous

and grant counsel’s petition for leave to withdraw.




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     Counsel’s petition for leave to withdraw granted.   Judgment of

sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/24/2016




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