J-S04025-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                           Appellee

                     v.

ERIC HERBERT

                           Appellant                 No. 3296 EDA 2018


      Appeal from the Judgment of Sentence Entered October 23, 2018
             In the Court of Common Pleas of Delaware County
                Civil Division at No.: CP-23-CR-0004272-2014


BEFORE: BENDER, P.J.E., STABILE, J., and MURRAY, J.

MEMORANDUM BY STABILE, J.:                            FILED APRIL 06, 2020

      Appellant Eric Herbert appeals from the October 23, 2018 judgment of

sentence entered in the Court of Common Pleas of Delaware County (“trial

court”) following the revocation of his probation. His counsel has filed a brief

and an application to withdraw pursuant to Anders v. California, 386 U.S.

738 (1969), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).

Upon review, we affirm the judgment of sentence and grant counsel’s

application to withdraw.

      The facts and procedural history of this case are undisputed. Briefly, on

September 8, 2014, Appellant pleaded guilty to resisting arrest under 18

Pa.C.S.A. § 5104, a second-degree misdemeanor that carried a maximum

sentence of two years’ imprisonment.       On the same day, the trial court

sentenced Appellant to one year of probation. On October 26, 2015, following
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a Gagnon II1 hearing, the trial court resentenced Appellant to one year of

probation, to be served consecutively with his other sentences.       Appellant

once again violated the terms of his probation because he failed to report to

his probation officer. At his October 23, 2018 Gagnon II hearing, Appellant

stipulated to the fact that he failed to report to his assigned agent on March

12, 2018. N.T. Hearing, 10/23/18, at 8. The trial court resentenced Appellant

to six to twenty-three months’ imprisonment. Appellant did not file any post-

sentence motion. See Pa.R.Crim.P. 708(E). He, however, timely appealed.2

       On November 18, 2019, Appellant’s counsel filed in this Court an

application to withdraw as counsel and filed an Anders brief, wherein counsel

challenged the discretionary aspects of Appellant’s sentence.         Specially,

counsel claimed that “the sentence of incarceration imposed in this matter on

October 23, 2018 was harsh and excessive under all the circumstances

presented in the record which, when taken together into a fair consideration,

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1 Gagnon v. Scarpelli, 411 U.S. 778 (1973), the Supreme Court determined
a two-step procedure was required before a parole or probation may be
revoked:

       [A] parolee [or probationer] is entitled to two hearings, one a
       preliminary hearing [Gagnon I] at the time of his arrest and
       detention to determine whether there is probable cause to believe
       that he has committed a violation of his parole [or probation], and
       the other a somewhat more comprehensive hearing [Gagnon II]
       prior to the making of a final revocation decision.

Id. at 781-82.
2 Appellant failed to comply with the trial court’s order directing him to file
Pa.R.A.P. 1925(b) statement of errors complained of on appeal. We, however,
decline to dismiss this appeal on that basis, given the filing of the Anders
brief and application to withdraw.

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clearly indicated that probation was more warranted than imprisonment.”

Anders Brief at 3 (unnecessary capitalization omitted).

      When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first examining counsel’s petition to

withdraw.    Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.

2007) (en banc).    It is well-established that, in requesting a withdrawal,

counsel must satisfy the following procedural requirements: 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) provide a copy of the brief to the defendant; and 3) advise the

defendant that he or she has the right to retain private counsel, proceed pro

se or raise additional arguments that the defendant considers worthy of the

court’s addition. Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.

2009).

      Instantly, counsel’s application to withdraw from representation

provides that counsel reviewed the record and concluded that the appeal is

frivolous.   Furthermore, counsel notified Appellant that he was seeking

permission to withdraw and provided Appellant with copies of the petition to

withdraw and his Anders brief. Counsel also advised Appellant of his right to

retain new counsel, proceed pro se, or raise any additional points he deems

worthy of this Court’s attention. Accordingly, we conclude that counsel has

satisfied the procedural requirements of Anders.




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       We next must determine whether counsel’s Anders brief complies with

the substantive requirements of Santiago, wherein our Supreme Court held:

       [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. Here, our review of counsel’s brief indicates that

he has complied with the briefing requirements of Santiago. We, therefore,

conclude    that    counsel    has    satisfied   the   minimum   requirements   of

Anders/Santiago.

       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 wholly

frivolous.” Santiago, 978 A.2d at 355 n.5. Thus, we now turn to the merits

of Appellant’s appeal.

       Appellant’s sole claim before us implicates the discretionary aspects of

sentencing.3 It is well-settled that “[t]he right to appeal a discretionary aspect

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3 When reviewing a challenge to the trial court’s discretion, our standard of
review is as follows:
      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. An abuse of discretion is
      more than just an error in judgment and, on appeal, the trial court
      will not be found to have abused its discretion unless the record



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of sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215,

1220 (Pa. Super. 2011).             Rather, where an appellant challenges the

discretionary aspects of a sentence, an appellant’s appeal should be

considered as a petition for allowance of appeal. Commonwealth v. W.H.M.,

932 A.2d 155, 162 (Pa. Super. 2007). As we stated in Commonwealth v.

Moury, 992 A.2d 162 (Pa. Super. 2010):

       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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)).

       Here, although Appellant timely appealed from the October 23, 2018

judgment of sentence, he failed to preserve the discretionary aspects of

sentencing claim for our review because he did not raise it before the trial

court at sentencing or in the post-sentence motion.              See Pa.R.Crim.P.

____________________________________________


       discloses that the judgment exercised was manifestly
       unreasonable, or the result of partiality, prejudice, bias, or ill-will.

Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012) (quoting
Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super. 2002)),
appeal denied, 64 A.3d 630 (Pa. 2013).

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720(A)(1); see also Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.

Super. 2013) (holding objections to discretionary aspects of sentence are

generally waived if not raised at sentencing or preserved in a post-sentence

motion). In Commonwealth v. Cartrette, 83 A.3d 1030 (Pa. Super. 2013),

we explained that “issues challenging the discretionary aspects of a sentence

must be raised in a post-sentence motion or by presenting the claim to the

trial court during the sentencing proceedings.      Absent such efforts, an

objection to a discretionary aspect of a sentence is waived.” Cartrette, 83

A.3d at 1042 (citation omitted).        Accordingly, Appellant’s sole claim

implicating the discretionary aspects of sentencing is waived.

      We have conducted an independent review of the record and addressed

Appellant’s argument on appeal. Based on our conclusions above, we agree

with Appellant’s counsel that the sentencing issue Appellant seeks to litigate

in this appeal is wholly frivolous.   We, therefore, affirm the judgment of

sentence and grant counsel’s application to withdraw.

      Judgment of sentence affirmed. Application to withdraw granted.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/2020



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