J. S44012/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :       IN THE SUPERIOR COURT OF
                                        :             PENNSYLVANIA
                  v.                    :
                                        :
JOSEPH VANGOETHEM,                      :          No. 1778 EDA 2015
                                        :
                       Appellant        :


          Appeal from the Judgment of Sentence, June 19, 2014,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0011551-2008


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED JULY 11, 2016

     Joseph Vangoethem appeals from the judgment of sentence entered

on June 19, 2014, by the Court of Common Pleas of Philadelphia County

following revocation of his probation. Shonda Williams, Assistant Defender,

has filed a petition to withdraw, alleging that the appeal is frivolous,

accompanied by an Anders brief.1        We will grant counsel’s withdrawal

petition and affirm the judgment of sentence.

     The trial court provided the following:

                On January 23, 2009, [a]ppellant entered an
           open guilty plea to burglary, theft, forgery, and bad
           checks.[2] A [pre-sentence investigation (PSI)] was

1
 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
2
   18 Pa.C.S.A. § 3502(a), 18 Pa.C.S.A. § 3921(a),            18   Pa.C.S.A.
§ 4101(a)(1), 18 Pa.C.S.A. § 4105(a)(1), respectively.
J. S44012/16


          ordered and sentence was deferred.      Following
          receipt and review of the PSI, [a]ppellant was
          sentenced on March 24, 2009 to 21 to 50 months[’]
          state incarceration on burglary and [7 years’]
          probation on forgery.    No further penalty was
          imposed on bad checks, and the theft charge
          merged.

                Appellant was arrested on October 4, 2012, in
          Westmoreland County where he was eventually
          sentenced on July 16, 2013, to a 4 to 8 year state
          prison term on aggravated assault and a concurrent
          1 to 2 years on an escape charge.[Footnote 1]

               [Footnote 1] [] Appellant got into a bar
               fight, was placed in the back of a patrol
               car and then fled the scene. He was
               apprehended and arrested a quarter mile
               away. A non-jury trial was held before
               the Hon. John E. Blahovec.

                This conviction was in direct violation of the
          forgery probation. A [violation of probation (VOP)]
          hearing took place on June 19, 2014 resulting in
          revocation. He was sentenced to 2-5 years[’] state
          incarceration consecutive to the Westmoreland
          County sentence he was serving.

                On the same day, [appellant] wrote to his
          counsel at the Defender Association of Philadelphia
          advising that he wanted to file a motion to
          reconsider sentence and a direct appeal. Counsel
          filed a timely motion to reconsider sentence on
          June 27, 2014 which was denied on July 7, 2014.
          The Defender Association then failed to file a timely
          notice of appeal to the Superior Court and sentence
          became final on July 21, 2014.

               On July 23, 2014, [appellant] filed a counseled
          PCRA petition alleging ineffective assistance of
          counsel for failure to file a direct appeal.

                 On June 11, 2015, we reinstated [appellant’s]
          right to appeal the VOP sentence nunc pro tunc.


                                  -2-
J. S44012/16



Trial court opinion, 11/6/15 at 1-2.

      Appellant raises the following issue for our review:

            Did not the lower court err and abuse its discretion in
            revoking appellant’s probation and imposing a
            sentence of 2 to 5 years[’] incarceration, to be
            served consecutively to the underlying direct
            violation term of 4 to 8 years’ confinement, where
            this sentence was manifestly excessive and
            unreasonable?

Appellant’s brief at 3.

      On February 19, 2016, Attorney Williams filed in this court a petition to

withdraw as counsel and an Anders brief, wherein Attorney Williams states

that there are no non-frivolous issues preserved for our review.

            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, 1247-1248 (Pa.Super.
            2015).

                   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


                                       -3-
J. S44012/16


                    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 additional
                    points worthy of the Court’s
                    attention.

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

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

                    The    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


                                  -4-
J. S44012/16


                       point that have led to the
                       conclusion that the appeal is
                       frivolous.

                 Santiago, 978 A.2d at 361.

           Id. at 1248. 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. at 1248. 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.

Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).

     Our review of Attorney Williams’ application to withdraw, supporting

documentation, and Anders brief reveals that she has complied with all of

the foregoing requirements. We note that counsel also furnished a copy of

the brief to appellant, advised him of his right to retain new counsel,

proceed pro se, and/or raise any additional points that he deems worthy of

this court’s attention, and attached to the Anders petition a copy of the

letter sent to appellant as required under Commonwealth v. Millisock,

873 A.2d 748, 751 (Pa.Super. 2005).       See Commonwealth v. Daniels,

999 A.2d 590, 594 (Pa.Super. 2010) (“While the Supreme Court in

Santiago set forth the new requirements for an Anders brief, which are

quoted above, the holding did not abrogate the notice requirements set forth

in Millisock that remain binding legal precedent.”).    As Attorney Williams



                                    -5-
J. S44012/16


has complied with all of the requirements set forth above, we conclude that

counsel has satisfied the procedural requirements of Anders.

     Once    counsel   has   met   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.”        Santiago, 978 A.2d at 355 n.5.

Therefore, we now turn to the merits of appellant’s appeal.

     The issue appellant raises challenges the discretionary aspects of his

sentence.

            Challenges to the discretionary aspects of sentencing
            do not entitle an appellant to review as of right.
            Commonwealth v. Sierra, [752 A.2d 910, 912
            (Pa.Super. 2000)].       An appellant challenging the
            discretionary aspects of his sentence must invoke
            this Court's jurisdiction by satisfying a four-part test:

                  [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).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010).




                                      -6-
J. S44012/16


      Here, the record reflects that appellant failed to properly preserve this

issue at sentencing or in a motion to reconsider and modify sentence. When

a court revokes probation and imposes a new sentence, the defendant must

preserve challenges to the discretionary aspects of that new sentence either

by objecting during the revocation sentencing or by filing a post-sentence

motion.   Commonwealth v. Malovich, 903 A.2d 1247, 1251 (Pa. Super.

2006). “A motion to modify a sentence imposed after a revocation shall be

filed within 10 days of the date of imposition.” Pa.R.Crim.P. 708(E).

      Here, a review of the record reveals that appellant failed to preserve

his excessiveness claim at sentencing. (See notes of testimony, 6/19/14 at

3-25.)    Additionally, although appellant filed a petition to vacate and

reconsider sentence in which he raised that issue, the record reflects that he

filed his petition on July 7, 2014, which was 18 days after imposition of

sentence and, therefore, untimely. See Pa.R.Crim.P. 703(E). Consequently,

appellant is unable to satisfy the four-part test necessary to invoke this

court’s jurisdiction, rendering this issue frivolous.

      Moreover, our independent review of the entire record has not

disclosed any potentially non-frivolous issues. Therefore, we grant counsel’s

petition to withdraw, and we affirm the judgment of sentence.

      Judgment of sentence affirmed. Petition to withdraw granted.




                                       -7-
J. S44012/16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/11/2016




                          -8-
