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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    v.                   :
                                         :
JOSEPH FOSBURG,                          :         No. 1631 WDA 2017
                                         :
                         Appellant       :


             Appeal from the Judgment of Sentence, May 3, 2016,
                 in the Court of Common Pleas of Erie County
              Criminal Division at Nos. CP-25-CR-0000353-2016,
                           CP-25-CR-0000484-2016


BEFORE: OLSON, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED MAY 16, 2018

        Appellant, Joseph Fosburg, appeals from the May 3, 2016 judgment of

sentence following his conviction of possession of drug paraphernalia and

access device fraud.1 The trial court appointed William J. Hathaway, Esq., as

appellant’s counsel for the instant appeal.   Attorney Hathaway has filed a

petition to withdraw, alleging that the appeal is frivolous, accompanied by an

Anders brief.2     We will grant counsel’s withdrawal petition and affirm the

judgment of sentence.




1   35 P.S. § 780-113(a)(32) and 18 Pa.C.S.A. § 4106(a), respectively.

2See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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        On May 3, 2016, appellant pleaded guilty to possession of drug

paraphernalia and access device fraud.          Immediately upon accepting

appellant’s plea, the trial court sentenced appellant to one to six months’

imprisonment, followed by two years’ probation. Appellant did not file any

post-sentence motions, nor did he file a direct appeal. On April 17, 2017,

appellant filed a pro se petition pursuant to the Post Conviction Relief Act3

(“PCRA”).     The trial court appointed Attorney Hathaway as appellant’s

counsel on April 26, 2017, and Attorney Hathaway filed a supplement to

appellant’s PCRA petition on June 8, 2017.      The trial court granted in part

and denied in part appellant’s PCRA petition on October 12, 2017,

reinstating appellant’s direct appeal rights nunc pro tunc. Appellant filed a

notice of appeal with this court on November 1, 2017.

        The trial court ordered appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b) on November 6,

2017. In lieu of a concise statement, Attorney Hathaway filed a statement

of intent to file an Anders brief on November 30, 2017. The trial court filed

an opinion pursuant to Pa.R.A.P. 1925(a) on December 7, 2017.

        On February 12, 2018, Attorney Hathaway filed in this court a motion

to withdraw as counsel and an Anders brief, wherein Attorney Hathaway

states 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

3   42 Pa.C.S.A. §§ 9541-9546.


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          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
                    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).




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                There are also requirements as to the
                precise requirements 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 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.

          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).




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     Our review of Attorney Hathaway’s application to withdraw, supporting

documentation, and Anders brief reveals that he 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, 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. 2015).      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 Hathaway 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   his   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 frivolous.”      Santiago, 978 A.2d at 355 n.5, citing

Commonwealth v. McClendon, 434 A.2d 1185, 1187 (Pa. 1981). Thus,

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

     The sole issue identified in Attorney Hathaway’s Anders brief is a

challenge to the discretionary aspects of appellant’s sentence. Specifically,



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Attorney Hathaway cited a statement by appellant that appellant “believed

he had been convicted of more serious charges in the past involving the

theft of more money and had received a more lenient sentence.” (Anders

brief at 2.)

      When reviewing the discretionary aspects of an appellant’s sentence,

we employ the following standard of review:

               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. Evans, 901 A.2d 528, 533
               (Pa.Super. 2006), appeal denied, 909 A.2d 303
               (Pa. 2006) (internal citations omitted).

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

Anders requires us to review issues that are otherwise waived on appeal,

we will address appellant’s issue on its merits. Commonwealth v. Lilley,



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978 A.2d 995, 998 (Pa.Super. 2009); Commonwealth v. Hernandez, 783

A.2d 784, 787 (Pa.Super. 2001).

      Here, appellant contends that the trial court erred in its sentence

because appellant received more lenient sentences for more serious offenses

in the past. Any sentences appellant may have received for past offenses is

irrelevant here.    The trial court sentenced appellant to a term of

imprisonment below the statutory maximum. Accordingly, appellant’s issue

is without merit.

      In sum, we find this appeal to be wholly frivolous, and our

independent review of the entire record has not disclosed any other

potentially    non-frivolous   issues.       Consequently,     we    grant

Attorney Hathaway’s petition to withdraw, and we affirm the judgment of

sentence.

      Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 5/16/2018




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