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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DAVID HOBAI
Appellant No. 1747 WDA 2015
Appeal from the Judgment of Sentence October 6, 2015
in the Court of Common Pleas of Erie County Criminal Division
at No(s): CP-25-CR-0000916-2001
BEFORE: SHOGAN, OTT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED: August 24, 2016
Appellant, David Hobai, appeals from the judgment of sentence
imposed following a violation-of-probation hearing and his underlying April
12, 2001 guilty plea for retail theft.1 Appellant’s counsel has filed a petition
to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), with this Court.
We grant counsel’s petition and affirm the judgment of sentence.
We summarize the facts as set forth by a prior panel of this Court:
On March 8, 2001, [Appellant] pled guilty at Docket No.
314 of 2001 to one count of Possession [of a controlled
substance] by Misrepresentation, Fraud, Deception or
Subterfuge. The charge resulted on December 6, 2000,
after [Appellant] went into a cabinet at Saint Vincent
Hospital in Erie, PA and obtained seven bottles of the drug
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3929(a)(1).
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Diazepam, which were later found in [Appellant’s] coat
pocket.
On March 8, 2001, [Appellant] was sentenced to ten
(10) years [of] Restrictive Intermediate Punishment at
Docket No. 314 of 2001. This sentence was imposed as
part of [Appellant’s] admission into Erie County’s Drug
Court on March 8, 2001.
On April 12, 2001, [Appellant] pled guilty at Docket No.
916 of 2001 to an earlier charge of Retail Theft. On
December 1, 2000, [Appellant] stole a Dewalt Cordless
drill from [the] Home Depot Store located in Erie, Pa. As
part of [Appellant’s] prior admission into Drug Court,
[Appellant] received a sentence of five (5) years [of]
probation consecutive to Count 1 at Docket No. 314 of
2001.
On January 22, 2003, [Appellant’s] intermediate
punishment and probation sentences were revoked.
[Appellant] received two (2) years to ten (10) years [of]
incarceration at Docket No. 314 of 2001 followed by a
consecutive sentence of five (5) years [of] probation re-
imposed at Docket No. 916 of 2001.
Commonwealth v. Hobai, 566 & 577 WDA 2004, at 1-2 (Pa. Super. Nov.
8, 2004) (unpublished memorandum) (footnotes omitted).
According to Appellant’s pro se “motion to [q]uash arrest warrant and
release formal detainer,” Erie County Probation Department filed a formal
detainer on June 25, 2015, which contended he failed to report to his
probation officer. Appellant’s Mot. to [Q]uash Arrest Warrant and Release
Formal Detainer, 9/9/15,2 at 1. Counsel was appointed. On October 6,
2
The motion was postmarked this date. See generally Commonwealth v.
Wilson, 911 A.2d 942, 944 n.2 (Pa. Super. 2006) (discussing prisoner
mailbox rule).
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2015, the court held a revocation of probation hearing and sentenced
Appellant that day to eleven-and-one-half to twenty-three months’
imprisonment in Erie County prison for violating his probation.
Appellant timely filed a post-sentence motion that requested a new
sentence of up to two years’ incarceration with the Pennsylvania Department
of Corrections instead of Erie County. Appellant’s Mot. for Post Sentence
Relief, 10/8/15, at 1. The court denied Appellant’s post-sentence motion on
October 9, 2015. Appellant, while represented by counsel, also filed a pro se
motion to reconsider and modify sentence, which was forwarded to counsel
according to the docket. Appellant’s counsel timely appealed and
simultaneously filed a Pa.R.A.P. 1925(c)(4) statement of intent to file an
Anders brief. Counsel subsequently filed a petition to withdraw with this
Court.
“[T]his Court may not review the merits of the underlying issues
without first passing on the request to withdraw.” Commonwealth v.
Garang, 9 A.3d 237, 240 (Pa. Super. 2010) (citation omitted).
[T]he three requirements that counsel must meet before
he or she is permitted to withdraw from representation
[are] as follows:
First, counsel must petition the court for leave to
withdraw and state that after making a conscientious
examination of the record, he has determined that
the appeal is frivolous; second, he must file a brief
refneerring to any issues in the record of arguable
merit; and third, he must furnish a copy of the brief
to the defendant and advise him of his right to retain
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new counsel or to himself raise any additional points
he deems worthy of the Superior Court’s attention.
Id. (citations omitted).
[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.
[I]n Pennsylvania, when counsel meets his or 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.”
Id. at 355 n.5 (citation omitted).
Instantly, counsel’s Anders brief summarized the factual and
procedural history3 and referred to everything in the record that arguably
supports the appeal. Counsel articulated the facts from the record, case
law, and statutes that led counsel to conclude that the appeal is frivolous.
Counsel furnished a copy of the brief to Appellant. Counsel also advised
Appellant of his right to retain new counsel or to raise, pro se, any additional
points that he deems worthy of the Court’s consideration. We find that
3
Counsel did not cite to the record, however.
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Appellant’s counsel has substantially complied with all the requirements set
forth above. See id. at 361; Garang, 9 A.3d at 240. Therefore, we now
review the underlying issues on appeal. See Santiago, 978 A.2d at 355
n.5.
The Anders brief raises the following issue:
Whether [A]ppellant’s sentence is manifestly excessive,
clearly unreasonable and inconsistent with the objectives
of the Sentencing Code?
Anders Brief at 3.4 Counsel asserts Appellant believes his sentence is
excessive and unreasonable. We hold Appellant is due no relief.
This Court has stated that
[c]hallenges to the discretionary aspects of
sentencing do not entitle an appellant to appellate
review as of right. Prior to reaching the merits of a
discretionary sentencing issue:
[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).
Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing
4
Appellant has not filed a pro se response.
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hearing or raised in a motion to modify the sentence
imposed at that hearing.
Commonwealth v. Evans, 901 A.2d 528, 533-34 (Pa. Super. 2006) (some
citations and punctuation omitted).
[T]he Rule 2119(f) statement must specify where the
sentence falls in relation to the sentencing guidelines and
what particular provision of the Code is violated (e.g., the
sentence is outside the guidelines and the court did not
offer any reasons either on the record or in writing, or
double-counted factors already considered). Similarly, the
Rule 2119(f) statement must specify what fundamental
norm the sentence violates and the manner in which it
violates that norm . . . .
Commonwealth v. Googins, 748 A.2d 721, 727 (Pa. Super. 2000) (en
banc).
Instantly, Appellant timely appealed. See Evans, 901 A.2d at 533.
Appellant’s post-sentence motion, however, raised only a single claim: he
should be incarcerated with the Department of Corrections, and not Erie
County Prison. See Appellant’s Mot. for Post Sentence Relief, 10/8/15, at 1.
Appellant’s post-sentence motion did not assert that his sentence was
manifestly excessive and otherwise inconsistent with the Sentencing Code.
Appellant, therefore, has waived the issue. See Evans, 901 A.2d at 533-34.
Accordingly, we deny Appellant permission to appeal. Our independent
review of the record reveals no other issue of arguable merit. See
Santiago, 978 A.2d at 355 n.5. We conclude that the appeal is frivolous
and grant counsel’s petition for leave to withdraw.
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Counsel’s petition for leave to withdraw granted. Judgment of
sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/24/2016
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Com. v. Hobai, D.
Combined Opinion