J. S01017/17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

DANTES E. WALLACE, :

:

Appellant : No. 1160 MDA 2016

Appeal from the Judgment of Sentence July 11, 2016

In the Court of Common Pleas of Lackawanna County 

Criminal Division at No(s): CP-35-CR-0001275-2015

 

BEFORE: GANTMAN, P.J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 13, 2017

Appellant, Dantes E. Wallace, appeals from the Judgment of Sentence 

entered following the revocation of his probation. On appeal, Appellant 

challenges the discretionary aspects of his sentence. Appellant’s counsel 

filed an Application to Withdraw as Counsel and a Brief pursuant to Anders 

v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 

A.2d 349 (Pa. 2009), stating that the appeal is wholly frivolous. After 

careful review, we affirm the Judgment of Sentence and grant the 

application to withdraw. 

The facts, as gleaned from the certified record, are as follows. On 

June 16, 2015, police arrested Appellant after detectives observed Appellant 

engage in a controlled sale of crack cocaine to a confidential informant. On 

August 7, 2015, Appellant entered into a guilty plea to one count of Criminal 
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Conspiracy to Commit Delivery of a Controlled Substance in violation of 18 

Pa.C.S. § 903.1 On October 16, 2015, the trial court sentenced Appellant to 

five years of Restrictive Intermediate Punishment, with Appellant to serve 

the first three months in confinement in Lackawanna County prison, and 

then three months on house arrest. As a condition of his sentence, 

Appellant was ordered not to consume drugs or alcohol, to stay away from 

liquor-licensed premises, to obtain a drug and alcohol assessment, and to 

participate in Lackawanna County’s Veteran’s Treatment Court.

On February 23, 2016, Appellant tested positive for marijuana. 

Appellant denied using marijuana, so the sample underwent additional 

testing. Further testing yielded positive results; therefore, Appellant was 

detained and transported to prison.

Appellant was released from custody on March 10, 2016. Three days 

later, on March 13, 2016, Appellant was randomly screened for alcohol use 

and tested positive. He was again detained and transported to prison. On 

May 23, 2016, Appellant’s Probation Officer filed a Probation Violation 

Petition.

On June 15, 2016, Appellant stipulated to the probation violations. 

The court, therefore, revoked Appellant’s probation sentence, and sentenced 

 

1

In exchange, the Commonwealth withdrew charges of Delivery of a 

Controlled Substance, Criminal Use of a Communication Facility, Possession 

of a Controlled Substance, and Possession of Drug Paraphernalia.
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Appellant to one to two years’ incarceration followed by two years’ 

supervised probation. 

Appellant filed a Motion for Reconsideration of Sentence, asserting that 

the sentence was harsh and excessive in light of his addiction issues, which 

the trial court denied on June 22, 2016. Appellant timely appealed. Both 

Appellant and the trial court complied with Pa.R.A.P. 1925.

On October 24, 2016, Appellant’s counsel filed an Application to 

Withdraw as Counsel, and on November 21, 2016, she filed a Brief pursuant 

to Anders and Santiago, supra.

Before we address the merits of this appeal, we must determine 

whether counsel has followed the procedures for filing a brief and petition to 

withdraw pursuant to Anders and its progeny. Commonwealth v. 

Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc). Counsel who 

wishes to withdraw must file a petition to withdraw explaining that he or she 

made a conscientious examination of the record and determined that an 

appeal would be frivolous. Commonwealth v. Wright, 846 A.2d 730, 736 

(Pa. Super. 2004). Also, counsel must provide a copy of the Anders Brief to 

the appellant and inform him of his right to proceed pro se, retain different 

counsel, or assert issues not included in the Anders Brief. Id.

The substance of the Anders 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; 
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(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.

Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 

2005), and its progeny, counsel seeking to withdraw on direct appeal must 

also meet the following obligations to his or her client: 

Counsel also must provide a copy of the Anders brief to his 

client. Attending the brief must be a letter that advises the 

client of his 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. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal 

quotation marks and citation omitted). “Once counsel has satisfied the 

above requirements, it is then this Court’s duty to conduct its own review of 

the trial court’s proceedings and render an independent judgment as to 

whether the appeal is, in fact, wholly frivolous.” Commonwealth v. 

Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc). Further, “this 

Court must conduct an independent review of the record to discern if there 

are any additional, non-frivolous issues overlooked by counsel.” 

Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015) 

(footnote and citation omitted). 
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In this appeal, we conclude that counsel’s Anders Brief complies with 

the requirements of Santiago. First, counsel has provided a procedural and 

factual summary of the case with references to the record. Second, counsel 

advances relevant portions of the record that arguably support Appellant’s 

claims on appeal. Third, counsel concludes that the instant appeal is wholly 

frivolous. Lastly, counsel has complied with the requirements set forth in 

Millisock. See Letter from Counsel to Appellant, dated 10/24/16. As a 

result, we proceed to conduct an independent review to ascertain if the 

appeal is indeed wholly frivolous.

Appellant’s sole issue in his Anders Brief challenges the discretionary 

aspects of his sentence. A challenge to the discretionary aspects of 

sentencing is not automatically reviewable as a matter of right. 

Commonwealth v. Hunter, 768 A.2d 1136, 1144 (Pa. Super. 2001). Prior 

to reaching 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, 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).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (citations

omitted).
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In the instant case, Appellant filed a timely Notice of Appeal and a 

timely Post-Sentence Motion. He also included a separate Pa.R.A.P. 2119(f) 

Statement in his Anders Brief. As to whether Appellant has presented a 

substantial question, we note:

The determination of what constitutes a substantial 

question must be evaluated on a case-by-case basis. A 

substantial question exists only when the appellant 

advances a colorable argument that the sentencing judge’s 

actions were either: (1) inconsistent with a specific 

provision of the Sentencing Code; or (2) contrary to the 

fundamental norms which underlie the sentencing process.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations 

and quotation marks omitted).

Here, Appellant avers in his Pa.R.A.P. 2119(f) Statement, that his 

“sentence was unwarranted given the fact that he has addiction issues.” 

Anders Brief at 10. Although Appellant concedes that the sentence imposed 

following the revocation of his probation falls within the statutory limits,2 he 

claims that it is inappropriately harsh and excessive because his probation 

violation arose from his addiction problems. Id. at 10-12. He argues that 

his sentence of incarceration is excessive, and the court failed to consider his 

rehabilitative needs or to identify how the sentence imposed would protect 

the public. Id. 

 

2 The statutory limit for Conspiracy to Commit Delivery of a Controlled 

Substance is ten years’ incarceration.
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“[O]rdinarily, a claim that the sentencing court failed to consider or 

accord proper weight to a specific sentencing factor does not raise a 

substantial question.” Commonwealth v. Caldwell, 117 A.3d 763, 769 

(Pa. Super. 2015) (citation omitted) (emphasis in original.) Moreover, 

there is ample precedent to support a determination that a 

claim that the trial court failed to consider an appellant’s 

rehabilitative needs fails to raise a substantial question[.] 

See Commonwealth v. Cannon, 954 A.2d 1222, 1228–

29 (Pa.Super.2008), appeal denied, 600 Pa. 743, 964 A.2d 

893 (2009) (claim that the trial court failed to consider the 

defendant's rehabilitative needs, age, and educational 

background did not present a substantial question); 

Commonwealth v. Coolbaugh, 770 A.2d 788, 793 

(Pa.Super.2001) (citing Commonwealth v. Mobley, 399 

Pa.Super. 108, 581 A.2d 949, 952 (1990)) (claim that 

sentence failed to take into consideration the defendant's

rehabilitative needs and was manifestly excessive did not 

raise a substantial question where sentence was within 

statutory guidelines and within sentencing guidelines); 

Commonwealth v. Coss, 695 A.2d 831, 833 

(Pa.Super.1997) (when the sentence imposed falls within 

the statutory limits, an appellant's claim that a sentence is 

manifestly excessive fails to raise a substantial question); 

Commonwealth v. Bershad, 693 A.2d 1303, 1309 

(Pa.Super.1997) (a claim that a trial court failed to 

appropriately consider an appellant's rehabilitative needs 

does not present a substantial question); Commonwealth 

v. Lawson, 437 Pa.Super. 521, 650 A.2d 876, 881 (1994) 

(claim of error for failing to consider rehabilitative needs 

does not present substantial question).

Id. (citing Commonwealth v. Griffin, 65 A.3d 932, 936-37 (Pa. Super. 

2013).

Accordingly, we conclude that Appellant has failed to raise a 

substantial question as to the appropriateness of his sentence and agree 

with counsel that this appeal is wholly frivolous. Furthermore, our 
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independent review of the record reveals no additional non-frivolous claims. 

We, therefore, grant counsel’s Application to Withdraw as Counsel and affirm 

Appellant’s Judgment of Sentence.

Judgment of Sentence affirmed. Application to Withdraw granted. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/13/2017