J-S71043-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROBERT CULLIS                              :
                                               :
                       Appellant               :   No. 1727 EDA 2019

          Appeal from the Judgment of Sentence Entered May 14, 2019
     In the Court of Common Pleas of Delaware County Criminal Division at
                        No(s): CP-23-CR-0002368-2016


BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED APRIL 14, 2020

       Robert Cullis (“Cullis”) appeals from the judgment of sentence entered

following the revocation of his probation. Cullis’s counsel has filed an Anders1

brief and a petition to withdraw as counsel. We grant counsel’s petition to

withdraw and affirm the judgment of sentence.

       Cullis entered into a negotiated guilty plea in October 2016 to Driving

Under the Influence and Possession of Drug Paraphernalia. Pursuant to the

plea, the court sentenced Cullis to a term of time served to six months of

incarceration, as well as one year of concurrent probation. The court later

issued a bench warrant in February 2017 for Cullis’s failure to comply with the



____________________________________________


1 Anders v. California, 386 U.S. 738 (1967) and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
J-S71043-19



terms of his probation. Following a Gagnon II hearing,2 the court sentenced

Cullis to back time of 83 days plus one year of concurrent probation.

        The court issued a second bench warrant in February 2019 for Cullis’s

further failure to comply with the terms of his probation. The court held a

Gagnon II hearing at which Cullis stipulated to the violation. N.T., 5/14/19,

at 3. The court revoked Cullis’s probation based on his failures to complete his

alcohol and safe driving programs and pay his court costs. Id. at 7. He also

absconded from his dual diagnosis program. Id. at 10. Further, Cullis had an

open criminal matter in another county. Id. at 7-8. The court adopted Cullis’s

probation officer’s recommendation and resentenced Cullis to a new term of

time served to six months of incarceration with parole after completion of Prep

I and Prep II programs. Id. at 14. Cullis did not file a post-sentence motion.

This timely appeal followed.

        Counsel for Cullis identifies the following issue in his Anders brief:

“Whether the term of incarceration imposed herein is harsh and excessive

under the circumstances due to its burdensome nature pertaining to his family

and its imposition based on an open charge for an unrelated offense allegedly

committed prior to his previous sentence[?]” Anders Br. at 3 (unnecessary

capitalization omitted).

        We must first determine whether counsel has satisfied the procedural

requirements for withdrawing as counsel. See Commonwealth v. Goodwin,

____________________________________________


2   Gagnon v. Scarpelli, 411 U.S. 778 (1973).

                                           -2-
J-S71043-19



928 A.2d 287, 290 (Pa.Super. 2007) (en banc) (stating that “[w]hen 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”). In order to withdraw pursuant to Anders, counsel must:

        1) petition the court for leave to withdraw stating that, after
        making a conscientious examination of the record, counsel
        has determined that the appeal would be frivolous; 2)
        furnish a copy of the brief to the defendant; and 3) advise
        the defendant that he or she has the right to retain private
        counsel or raise additional arguments that the defendant
        deems worthy of the court’s attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en

banc). Further, in the Anders brief, counsel seeking 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.

Santiago, 978 A.2d at 361.

     If counsel meets all of the above 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 (quoting Commonwealth v.

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




                                     -3-
J-S71043-19



      Instantly, we find that counsel has complied with all of the above

technical requirements. In his Anders brief, counsel has provided a summary

of the procedural history and facts of the case with citations to the record.

Further, counsel’s brief includes an issue that could arguably support the

appeal, and counsel’s assessment of why that issue is frivolous, with citations

to the record and relevant legal authority. In addition, counsel served Cullis

with a copy of the Anders brief and advised him of his right to proceed pro

se or retain a private attorney to raise any additional points he deemed worthy

of this Court’s review. Application to Withdraw, 11/1/19, at ¶¶ 5-6. Cullis has

not responded to counsel’s petition to withdraw. As we find counsel has met

the technical requirements of Anders and Santiago, we will proceed to

determine if the issue counsel identified is wholly frivolous.

      The issue presented in counsel’s Anders brief is whether Cullis’s

sentence was harsh and excessive. This issue challenges the discretionary

aspects of his sentence. “The right to appellate review of the discretionary

aspects of a sentence is not absolute, and must be considered a petition for

permission to appeal.” Commonwealth v. Conte, 198 A.3d 1169, 1173

(Pa.Super. 2018), appeal denied, 206 A.3d 1029 (Pa. 2019). Before reviewing

the merits of Cullis’s claim, we must determine whether: “(1) the appeal is

timely; (2) the appellant has preserved his issue; (3) his brief includes a

concise statement of the reasons relied upon for allowance of an appeal with

respect to the discretionary aspects of his sentence; and (4) the concise

statement raises a substantial question whether the sentence is inappropriate

                                      -4-
J-S71043-19



under the Sentencing Code.” Commonwealth v. Green, 204 A.3d 469, 488

(Pa.Super. 2019).

      Here, engaging in the four-part analysis set forth in Green, the record

reflects that Cullis’s appeal is timely, his brief includes a concise statement of

the reasons relied upon for allowance of an appeal, and the concise statement

raises a substantial question whether the sentence is inappropriate under the

Sentencing Code. See Commonwealth v. Colon, 102 A.3d 1033, 1043

(Pa.Super. 2014), appeal denied, 109 A.3d 678 (Pa. 2015) (stating that the

imposition of a sentence of total confinement following the revocation of

probation based solely on a technical violation raises a substantial question).

      However, Cullis has failed to preserve his issue for review. The

sentencing hearing transcript contains no objection from Cullis that the

sentence imposed was harsh and excessive and Cullis did not file a subsequent

motion to reconsider or modify his sentence. The appellant must have

presented the discretionary sentencing claim to the trial court by at least one

of these methods in order to preserve it for appellate review. See Cartrette,

83 A.3d at 1042. This rule applies equally in the revocation context. See

Commonwealth v. Kalichak, 943 A.2d 285, 289 (Pa.Super. 2008). “Absent

such efforts, an objection to a discretionary aspect of a sentence is waived.”

Cartrette, 83 A.3d at 1042 (citation omitted). Since Cullis did not raise the

issue at the sentencing hearing or in a post-sentence motion, Cullis did not

give the sentencing court the opportunity to reconsider or modify its




                                      -5-
J-S71043-19



sentence.3 This sentencing claim is therefore waived, and thus frivolous for

direct appeal. See id., 83 A.3d at 1042-43 (finding challenge to discretionary

aspects of sentencing wholly frivolous where appellant failed to raise it in a

post-sentence motion or at sentencing).

       We also find the argument frivolous, as counsel states it. The record

demonstrates that the trial court took into account all of the testimony and

arguments put before it at the Gagnon II hearing, in addition to the history

of this case. At the Gagnon II hearing, Cullis stipulated to violating his

probation. The court found that in addition to having an open criminal matter

in another county, Cullis had repeatedly committed technical violations of his

probation. The court also heard argument regarding Cullis’s family obligations

and employment before making its decision. The record supports the trial

court’s implicit determination that “the conduct of the defendant indicates that

it is likely that he will commit another crime if he is not imprisoned” and “such

a sentence is essential to vindicate the authority of the court.” 42 Pa.C.S.A. §

9771(c)(2),(3).

       We thus agree with counsel that the issue identified in his Anders brief

is wholly frivolous. Our independent review has revealed no non-frivolous

issues. We therefore affirm the judgment of sentence and grant the petition

to withdraw.

____________________________________________


3 Cullis’s counsel also did not raise the issue in his court-ordered Pa.R.A.P.
1925(b) concise statement. In his concise statement, Cullis’s counsel merely
stated that he intended to file an Anders brief.

                                           -6-
J-S71043-19



     Petition to withdraw as counsel granted. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/14/20




                                   -7-
