J-S21014-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANTHONY SABATELL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1323 MDA 2021

Appeal from the Judgment of Sentence Entered September 13, 2021

In the Court of Common Pleas of Lackawanna County Criminal Division at 

No(s): CP-35-CR-0001187-2020

COMMONWEALTH OF PENNSYLVANIA

v.

ANTHONY PAUL SABATELL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1324 MDA 2021

Appeal from the Judgment of Sentence Entered September 13, 2021

In the Court of Common Pleas of Lackawanna County Criminal Division at 

No(s): CP-35-CR-0001964-2020

BEFORE: DUBOW, J., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY DUBOW, J.: FILED: AUGUST 4, 2022

Appellant, Anthony Paul Sabatell, appeals from the September 13, 2021 

Judgments of Sentence entered in the Lackawanna County Court of Common 

Pleas following his guilty plea to one count each of DUI – Second Offense and 

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* Retired Senior Judge assigned to the Superior Court.
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Default in Required Appearance.1 Appellant’s counsel, Donna M. DeVita, 

Esquire, has filed a Petition to Withdraw as Counsel and an Anders2 Brief, in 

which she has raised a challenge to the discretionary aspects of Appellant’s 

sentences. After careful review, we conclude that Appellant waived his 

challenge to the discretionary aspects of his sentences by failing to timely file 

a post-sentence motion preserving the issue. As a result, we grant counsel’s 

Petition to Withdraw and affirm Appellant’s Judgment of Sentence.

The relevant facts and procedural history are as follows. On July 15, 

2020, police stopped Appellant who was driving a vehicle with an inoperable

taillight. When Appellant exited his vehicle, he exhibited signs that he had 

been operating his vehicle under the influence of a stimulant. Police searched 

Appellant’s vehicle and discovered one glass pipe, multiple torches, and one 

marijuana grinder containing a small amount of marijuana. The 

Commonwealth charged Appellant at Docket Number 20 CR 1187 with one 

count of DUI, two counts of Possession of Drug Paraphernalia, and one 

summary traffic offense. The court released Appellant on bail pending his 

trial. 

Approximately three months later, after Appellant failed to report to the 

probation department as required, the Commonwealth charged Appellant at 

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1 75 Pa.C.S. § 3802(a)(1) and 18 Pa.C.S. § 5124, respectively.

2 Anders v. California, 386 U.S. 738 (1967).
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Docket Number 20 CR 1964 with one count each of Escape and Default in 

Required Appearance. 

On July 7, 2021, Appellant, represented by Jeffrey Poplawsky, Esquire,

entered an open guilty plea to DUI – Second Offense and Default in Required 

Appearance. Prior to entering his plea, Appellant executed a written plea 

colloquy form for both of his charges and the court conducted an oral colloquy 

to confirm that Appellant’s plea was knowing, intelligent, and voluntary. The 

court accepted Appellant’s plea and deferred sentencing pending preparation 

of a pre-sentence investigation report. 

On September 13, 2021, the court imposed a standard-range sentence 

of time-served to six months’ incarceration for Appellant’s DUI conviction and 

an aggravated range consecutive sentence of time-served to two years for 

Appellant’s Default in Required Appearance convictions. Appellant did not file 

any post-sentence motions. 

These timely appeals followed.3, 4 Both Appellant and the trial court 

complied with Pa.R.A.P. 1925.

On April 25, 2022, counsel filed a Motion to Withdraw and an Anders

Brief. Appellant did not respond.

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3 Current counsel, Attorney DeVita, filed the Notice of Appeal on Appellant’s 

behalf. It is not clear from the record when or why plea counsel, Attorney 

Poplawsky, was permitted to withdraw.

4 On November 9, 2021, this Court consolidated Appellant’s appeals sua 

sponte.
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In the Anders Brief, counsel indicated that Appellant wished to 

challenge the discretionary aspects of his sentence. In particular, counsel 

indicated that Appellant believed that the trial court abused its discretion in 

failing to state on the record the reasons for Appellant’s sentence, that the 

sentence was harsh, excessive, and an abuse of discretion, and that the court 

erred in imposing Appellant’s sentences to run consecutively. Anders Brief 

at 4.

As a preliminary matter, we address appellate counsel’s request to 

withdraw as counsel. “When presented with an Anders Brief, this Court may 

not review the merits of the underlying issues without first passing on the 

request to withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. 

Super. 2010). In order for counsel to withdraw from an appeal pursuant to 

Anders, our Supreme Court has determined that counsel must meet the 

following requirements: 

(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. 

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). 
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Counsel has complied with the mandated procedure for withdrawing as 

counsel. Additionally, counsel confirms that she sent Appellant a copy of the 

Anders Brief and Petition to Withdraw, as well as a letter explaining to 

Appellant that he has the right to retain new counsel, proceed pro se, and to 

raise any additional points. See Commonwealth v. Millisock, 873 A.2d 748, 

751 (Pa. Super. 2005) (describing notice requirements). 

Because counsel has satisfied the above requirements, we will address 

the substantive issue raised in the Anders Brief. Subsequently, we must 

“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 (citation omitted). See also Commonwealth v. Yorgey, 

188 A.3d 1190, 1197 (Pa. Super. 2018) (en banc) (noting Anders requires 

the reviewing court to “review ‘the case’ as presented in the entire record with 

consideration first of issues raised by counsel”).

In the Anders Brief, counsel reiterates Appellant’s challenge to the 

discretionary aspects of his sentence. An appellant raising such a challenge 

is not entitled to review as of right; rather, a challenge in this regard is 

properly viewed as a petition for allowance of appeal. 42 Pa.C.S. § 9781(b); 

Commonwealth v. Tuladziecki, 522 A.2d 17, 18-19 (Pa. 1987); 

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014). 

In order to obtain this Court’s review, an appellant challenging the 

discretionary aspects of his sentence must comply with the following 

requirements: (1) file a timely notice of appeal; (2) preserve the issue at 
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sentencing or in a motion to reconsider and modify sentence; (3) include 

within his brief a concise statement of the reasons relied upon for allowance 

of appeal as required by Pa.R.A.P. 2119(f); and (4) raise a substantial 

question that the sentence is inappropriate under the Sentencing Code. 

Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa. Super. 2013).

Appellant did not challenge the sentencing court’s exercise of discretion 

at sentencing or in a timely post-sentence motion. As a result, Appellant 

waived his challenge to the discretionary aspects of his sentences. See 

Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005) (noting 

that issues challenging the discretionary aspects of a sentence must be raised 

in a post-sentence motion or by presenting the claim to the court during 

sentencing proceedings; absent these efforts the issue is waived).

After conducting our independent review as required pursuant to 

Yorgey, 188 A.3d at 1197, we discern no non-waived, non-frivolous issues to 

be raised on appeal. We, therefore, grant counsel’s Petition to Withdraw and 

affirm the Judgment of Sentence. 

Judgment of Sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/04/2022