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

v.

ANTHONY SABATELL

Appellant : : : : : : : : : 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 : : : : : : : : : 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: A UGUST 4, 2022 Appellant, Anthony Paul Sabatell, appeals from the September 13, 2021 Judgment s of Sentence entered in the Lackawanna County Court of Common Pleas following his guilty plea to one count each of DUI

– Second Offense and

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.J

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Default in Required Appearance. 1 Appellant’s counsel, Donna M. DeVita, Esquire, has filed a Petition to Withdraw a s Counsel and an Anders 2 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 stop ped Appellant who was driving a vehicle with a n 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 contain ing 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 o ffense. 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

_________________ __________ ______ ____ _______ 1 75 Pa.C.S. § 3802(a)(1) and 18 Pa.C.S. § 5124, respectively.

2 Anders v. California , 386 U.S. 738 (1967).J

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Docket Number 20 CR 1964 with one count ea ch 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 execut ed a written plea colloquy form for both of his charges and the court conducted a n 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 p re - 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 fo r Appellant’s Default in Required Appearance convictions. Appellant did not file
any post

- sentence motion s . Th ese timely appeal s 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.

_________________ __________ ______ ____ _______ 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.J

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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 sente nces 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 passin g 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) prov ide 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 couns el’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).J

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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 (c itation 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 fo r 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 atJ

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sentencing or in a motion to reconsider an d 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. Comm onwealth 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 3 62, 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). Aft er 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. Judgmen t of Sentence affirmed.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8 /0 4 /2022