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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DANIEL ROSARIO,
Appellant No. 292 MDA 2015
Appeal from the Judgment of Sentence of January 14, 2015
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0000859-2008
BEFORE: BENDER, P.J.E., ALLEN AND OLSON, JJ.
MEMORANDUM BY OLSON, J.: FILED AUGUST 11, 2015
Appellant, Daniel Rosario, appeals from the judgment of sentence
entered on January 14, 2015 in the Criminal Division of the Court of
Common Pleas of Lackawanna County following revocation of his probation.
On appeal, counsel filed an application to withdraw from representation
pursuant to Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981) and
its federal precursor, Anders v. California, 386 U.S. 738 (1967), as well as
an Anders brief on Appellant’s behalf.1 Upon careful consideration, we
grant counsel’s leave to withdraw and affirm the judgment of sentence.
The pertinent facts and procedural history of this case are as follows.
In June 2008, Appellant pled guilty to possession of a controlled substance
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1
Appellant has not responded to counsel’s application to withdraw.
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with intent to deliver, 35 Pa.C.S.A. § 780-113(A)(30). Thereafter, in
September 2008, the court sentenced Appellant to one and one-half to five
years’ imprisonment, followed by two years of special probation.
The Lackawanna County Department of Probation and Parole filed a
petition alleging that Appellant violated conditions one and four of his special
probation/parole conditions. Specifically, the petition alleged that Appellant
relocated from Lackawanna County to Florida without prior approval. In
addition, the petition charged that Appellant violated a probationary
condition that required him to comply with all municipal, state, and federal
laws. The petition alleged that on August 26, 2014, the Sheriff’s
Department of Osceola County, Florida arrested Appellant and charged him
with theft and resisting arrest. Appellant pled guilty to both offenses and
was sentenced on October 16, 2014 to time served.
At a Gagnon II2 hearing on January 14, 2015, Appellant stipulated to
these violations and received a revocation sentence of one and one-half to
three years’ imprisonment in a state correctional institution, followed by two
years of special probation. Order, 1/14/15. At sentencing, the revocation
court explained that it imposed a sentence of total incarceration in this case
because of the number of violations Appellant committed during the course
of his probation, as well as Appellant’s convictions for new offenses in
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2
Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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Florida. Appellant moved for reconsideration of his sentence on January 14,
2015 and the trial court denied his request by order entered on January 20,
2015. Order, 1/20/15. This timely appeal followed.3
On appeal, counsel filed a purported Anders brief in this Court and an
accompanying application to withdraw as counsel. The Anders brief
presents two potential issues for our review:
Whether the [revocation] court imposed an inappropriately
harsh and excessive sentence, which constituted an abuse
of discretion?
Whether the [revocation] court failed to take into
consideration [Appellant’s] rehabilitation needs when it
imposed its sentence?
Appellant’s Brief at 4 (complete capitalization omitted).
Before addressing the merits of the underlying issue that
[Appellant] presents for our review, we first must pass upon
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3
Appellant filed a pro se notice of appeal on January 14, 2015. Although
Appellant’s pro se filing represents a violation of the policy against hybrid
representation and a departure from conventional practice, our Supreme
Court previously held that a revoked probationer's premature pro se notice
of appeal does not divest a trial court of jurisdiction to act upon a timely
post-sentence motion later filed by defense counsel. Commonwealth v.
Cooper, 27 A.3d 994, 1007 (Pa. 2011) (“The proper way to view [such a]
pro se appeal [] is as a premature appeal that was perfected upon the trial
court's proper consideration and denial of the counseled post-sentence
motions.”). Hence, Appellant’s pro se submission does not foreclose our
review. By order dated February 11, 2015, the trial court appointed
appellate counsel and directed the filing of a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely
filed his concise statement, which included both issues listed in the Anders
brief. As yet, the court has not issued its opinion pursuant to Pa.R.A.P.
1925(a).
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counsel's petition to withdraw as counsel. Commonwealth v.
Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc).
Prior to withdrawing as counsel on a direct appeal under
Anders, counsel must file a brief that meets the requirements
established by our Supreme Court in Commonwealth v.
Santiago, 978 A.2d 349, 361 (Pa. 2009). The brief 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. Counsel also must provide a copy
of the Anders brief to the appellant. Attending the brief must
be a letter that advises the appellant of his or her right to “(1)
retain new counsel to pursue the appeal; (2) proceed pro se on
appeal; or (3) raise any points that the appellant deems worthy
of the court's attention in addition to the points raised by counsel
in the Anders brief.” Commonwealth v. Nischan, 928 A.2d
349, 353 (Pa. Super. 2007); see Commonwealth v. Daniels,
999 A.2d 590, 594 (Pa. Super. 2010); Commonwealth v.
Millisock, 873 A.2d 748, 751–752 (Pa. Super. 2005).
Commonwealth v. Harden, 103 A.3d 107, 110 (Pa. Super. 2014).
Our review of counsel's petition to withdraw and the accompanying
brief reveals that counsel substantially complied with Santiago’s procedural
requirements. The Anders brief provides a factual and procedural history
detailing the events relevant to the instant appeal, along with appropriate
citations. Anders Brief 5–6. The Anders brief also identifies two
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discretionary sentencing claims that Appellant seeks to raise on appeal: a
claim alleging that the revocation court abused its discretion in imposing an
excessive sentence and a claim alleging an abuse of discretion stemming
from the court’s alleged failure to consider Appellant’s rehabilitative needs in
fixing his sentence. Id. at 4. Counsel addresses the applicable facts and
pertinent principles of law, ultimately concluding that this claim would be
frivolous. Id. at 7 and 12–15. Although counsel’s application to withdraw
omitted language describing the nature of counsel’s review of the record and
setting forth her conclusion that any appeal would be wholly frivolous, see
Petition to Withdraw as Counsel, 5/22/15, counsel included this language in
the Anders brief and in her letter forwarding the brief and withdrawal
application to Appellant. Anders Brief at 7 (“Upon receiving a briefing
schedule, present counsel made a conscientious examination of the record
and ultimately determined an appeal would be wholly frivolous.”); Letter,
5/22/15 (“After a thorough review of the record, I have determined that any
appeal would be frivolous.”).
Additionally, in accordance with Nischan, counsel forwarded Appellant
a copy of the Anders brief and a letter informing him that he has the right
to hire a new attorney, to proceed with an appeal on his own, and to raise
any additional points that he thinks are worthy of this Court's attention.
Letter, 5/22/15. Accordingly, counsel substantially complied with the
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requirements set forth in Nischan, 928 A.2d at 353. See also Millisock,
873 A.2d at 751–752.
We turn now to an independent review of the record to determine
whether the issues identified by Appellant in this appeal are, as counsel
claims, wholly frivolous, or if there are any other meritorious issues present
in this case. Santiago, 978 A.2d at 354, quoting Anders, 386 U.S. at 744
(“[T]he court—not counsel—then proceeds, after a full examination of all the
proceedings, to decide whether the case is wholly frivolous. If it so finds, it
may grant counsel's request to withdraw.”).
The two issues identified in the Anders brief challenge the
discretionary aspects of Appellant’s revocation sentence.4 “[S]entencing is a
matter vested in the sound discretion of the sentencing judge, whose
judgment will not be disturbed absent an abuse of discretion.”
Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 2001).
Moreover, pursuant to statute, Appellant does not have an automatic right to
appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A.
§ 9781(b). Instead, Appellant must petition this Court for permission to
appeal the discretionary aspects of his sentence. Id.
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4
It is now well-settled that we may consider discretionary challenges to a
revocation sentence. Commonwealth v. Cartrette, 83 A.3d 1030, 1034
(Pa. Super. 2013) (en banc) (“[W]e unequivocally hold that this Court's
scope of review in an appeal from a revocation sentencing includes
discretionary sentencing challenges.”).
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As this Court explained:
[t]o reach the merits of a discretionary sentencing issue, we
conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, Pa.R.A.P. 902, 903;
(2) whether the issue was properly preserved at sentencing or in
a motion to reconsider and modify sentence, 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. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).
Here, Appellant filed a timely notice of appeal and preserved his claims
by filing a timely reconsideration motion and a concise statement pursuant
to Rule 1925(b) alleging that his sentence was excessive and that certain
environmental circumstances were not fully developed for the court’s
consideration. Appellant’s brief also includes a statement pursuant to
Pa.R.A.P. 2119(f). Thus, we turn to whether the appeal presents a
substantial question.
As we explained:
The determination of whether a particular case raises a
substantial question is to be evaluated on a case-by-case basis.
Generally, however, in order to establish that there is a
substantial question, the appellant must show actions by the
sentencing court inconsistent with the Sentencing Code or
contrary to the fundamental norms underlying the sentencing
process.
Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (internal
citations omitted). Section 9721 expresses these general principles in the
following manner:
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the sentence imposed should call for confinement that is
consistent with the protection of the public, the gravity of the
offense as it relates to the impact on the life of the victim and on
the community, and the rehabilitative needs of the defendant.
42 Pa.C.S.A. § 9721(b). “In determining whether a substantial question
exists, this Court does not examine the merits of the sentencing claim.”
Cartrette, 83 A.3d at 1042, citing Commonwealth v. Tuladziecki, 522
A.2d 17 (Pa. 1987).
As stated above, Appellant raises two discretionary challenges on
appeal: a claim alleging that the revocation court abused its discretion in
imposing an excessive sentence and a claim alleging an abuse of discretion
arising from the court’s alleged failure to consider Appellant’s rehabilitative
needs. In his Rule 2119(f) statement, Appellant refers to his excessive
sentence claim without detailed elaboration. This Court previously held that
“a bald assertion that a sentence is excessive does not by itself raise a
substantial question justifying this Court's review of the merits of the
underlying claim.” Commonwealth v. Harvard, 64 A.3d 690, 701 (Pa.
Super. 2013) (quotation omitted), appeal denied, 77 A.3d 636 (Pa. 2013).
As for his second contention, Appellant nowhere mentions his rehabilitative
needs claim in his Pa.R.A.P. 2119(f) statement. Thus, although we have
held that the failure to consider the sentencing factors delineated in 42
Pa.C.S. § 9721(b) raises a substantial question, Catrette, 83 A.3d at 1042,
Appellant’s failure to mention this claim in his Pa.R.A.P. 2119(f) statement
leads us to conclude that he has waived appellate review of this issue.
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Moreover, even if we were to reach the merits of Appellant’s claims
pursuant to our duty to review the record independently, we agree with
counsel that Appellant’s issues are wholly frivolous. At sentencing, the court
provided its reasons for Appellant's sentence. It set forth a lengthy list of
parole and probations committed by Appellant, including: curfew violations,
failure to maintain employment, failure to notify authorities of change in
status, positive urine analysis, and incarceration. N.T. Sentencing, 1/14/15,
at 4. The court also was aware that Appellant recently relocated
out-of-state without permission and incurred new charges in violation of the
conditions of his probation. The record reveals that the sentencing court
properly and adequately considered the factors included in 42 Pa.C.S.A.
§ 9721(b). Hence, no relief is due on Appellant’s discretionary sentencing
challenges.
Judgment of sentence affirmed. Application to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2015
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