J-S29032-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

*Retired Senior Judge assigned to the Superior Cour t. COMMONWEALTH OF PENNSYLVANIA, Appellee

v. JOHN PATRICK AROSE, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1783 WDA 2014 Appeal from the Judgment of Sentence Entered Septem ber 22, 2014,

in the Court of Common Pleas of Jefferson County, Criminal Division, at No(s): CP-33-CR-0000139-2014

CP-33-CR-0000590-2007 CP-33-CR-0000591-2007 CP-33-CR-0000592-2007 CP-33-CR-0000593-2007 BEFORE: PANELLA, MUNDY, and STRASSBURGER, JJ.* MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 24, 2015 John Patrick Arose (Appellant) appeals from his Se ptember 22, 2014 judgment of sentence, which the trial court imposed after revoking Appellant’s probation. In addition, Appellant’s co unsel has filed a petition to withdraw and a brief pursuant to Anders v. California , 386 U.S. 738 (1967), and Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009). We affirm the judgment of sentence and grant the petit ion to withdraw. On January 20, 2014, Appellant was charged with thr ee counts of possession of drug paraphernalia at case number 139 of 2014. Appellant entered into a negotiated plea agreement whereby he pled guilty to one count of possession of drug paraphernalia in exchan ge for a sentence of oneJ-S29032-15

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year of probation. On June 4, 2014, consistent wit h the plea agreement, he was sentenced to one year of probation. Because Appellant was serving a term of probation f or prior convictions at the time of his new conviction, on S eptember 22, 2014, Appellant appeared for a Gagnon II 1 hearing. At that time, the court took judicial notice of the plea and sentence imposed at 139 of 2014. N.T., 9/22/2014, at 2. The court found that this new con viction was a violation of Appellant’s probation that had been imposed at case s 590, 591, 592, and

593 of 2007. 2 The court further pointed out that this was Appel lant’s second set of charges while on probation. Id . at 2. Moreover, the court noted that on June 5, 2014, just one day after being sentenced at case number 139 of 2014, Appellant was charged with possession of a co ntrolled substance (marijuana) and possession of drug paraphernalia at case number 337 of

2014. 3 Accordingly, the court revoked Appellant’s probatio n at docket numbers 590, 591, 592, and 593 of 2007 and sentence d him to an aggregate term of 5 to 10 years’ incarceration to b e followed by three years of probation. The court also revoked Appellant’s p robation at 139 of 2014,

1 Gagnon v. Scarpelli , 411 U.S. 778 (1973).

2 All of these convictions were drug-related.

3 Appellant subsequently pled guilty to the possessi on charge and was sentenced to 3 to 12 months’ incarceration on Septe mber 17, 2014.J-S29032-15

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and sentenced him to a consecutive 6 to 12 months’ incarceration. The court also determined that Appellant is eligible fo r the Recidivism Risk Reduction Incentive program. 4 On October 20, 2014, Appellant filed a motion for r econsideration of

sentence. 5 That motion was denied on October 22, 2014, and A ppellant filed a notice of appeal that day. 6 Both Appellant and the court complied with

Pa.R.A.P. 1925. The following principles guide our review of this m atter: Direct appeal counsel seeking to withdraw under Anders must file a petition averring that, after a conscientiou s examination of the record, counsel finds the appeal to be wholly f rivolous. Counsel must also file an Anders brief setting forth issues that might arguably support the appeal along with any ot her issues necessary for the effective appellate presentation thereof....

Anders counsel must also provide a copy of the Anders petition and brief to the appellant, advising the a ppellant of the right to retain new counsel, proceed pro se or raise any additional points worthy of this Court’s attention.

If counsel does not fulfill the aforesaid technical requirements of Anders , this Court will deny the petition to

4 Recidivism Risk Reduction Incentive Act, 61 Pa.C.S . §§ 4501–4512.

5 A post-sentence motion must be filed within 10 day s after the imposition of the sentence. Pa.R.Crim.P. 720(A)(1). Accordingly, this post-sentence motion, filed 28 days after the imposition of the s entence, was filed untimely.

6 Where an untimely post-sentence motion is filed, a notice of appeal must be filed 30 days after the imposition of the senten ce. Pa.R.Crim.P. 720(A)(3). Because the notice of appeal was filed on October 22, 2014, exactly 30 days after the imposition of sentence, i t was filed timely.J-S29032-15

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withdraw and remand the case with appropriate instr uctions (e.g., directing counsel either to comply with Anders or file an advocate’s brief on Appellant’s behalf). By contra st, if counsel’s petition and brief satisfy Anders , we will then undertake our own review of the appeal to determine if it is whol ly frivolous. If the appeal is frivolous, we will grant the withdraw al petition and affirm the judgment of sentence. However, if there are nonfrivolous issues, we will deny the petition and rem and for the filing of an advocate’s brief.

Commonwealth v. Wrecks , 931 A.2d 717, 720-21 (Pa. Super. 2007) (citations omitted). Our Supreme Court has clarified portions of the Anders procedure: Accordingly, we hold that in the Anders brief that accompanies court-appointed counsel’s petition to withdraw, cou nsel must: (1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in t he 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 rec ord, 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. Based upon our examination of counsel’s application to withdraw and

Anders brief, we conclude that counsel has substantially complied with the above requirements. 7 “We, therefore, turn to the issue presented in

counsel’s Anders brief to make an independent judgment as to whethe r the

7 Appellant has not responded to counsel’s applicati on to withdraw.J-S29032-15

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appeal is, in fact, wholly frivolous.” Commonwealth v. Martuscelli , 54 A.3d 940, 947 (Pa. Super. 2012). According to counsel, Appellant wishes to challenge the discretionary aspects of his sentence: “Whether the trial court a bused its discretion when it revoked Appellant’s probation and re-sentenced h im to serve a sentence of

incarceration in the State Correctional Institution aggregating to a minimum of five and one-half (51⁄2) years to a maximum of elev en (11) years for [A]ppellant’s violation of probation.” 8 It is well settled that, with regard to the discret ionary aspects of sentencing, there is no automatic right to appeal. Before [this Court may] reach the merits of [a chal lenge to the discretionary aspects of a sentence], we must e ngage in a four part analysis to determine: (1) whether the appeal is timely; (2) whether Appellant preserved h is issue; (3) whether Appellant’s brief includes a con cise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement rai ses a substantial question that the sentence is appropria te under the sentencing code.... [I]f the appeal satisfies each of these four requirements, we will then proceed to de cide the substantive merits of the case.

Commonwealth v. Disalvo , 70 A.3d 900, 902 (Pa. Super. 2013) (citations omitted).

8 “[I]t is within our scope of review to consider ch allenges to the discretionary aspects of an appellant’s sentence in an appeal following a revocation of probation.” Commonwealth v. Ferguson , 893 A.2d 735, 737 (Pa. Super. 2006).J-S29032-15

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Instantly, has satisfied the first requirement by f iling timely a notice of appeal. To satisfy the second requirement regardin g preservation, we point out that “[o]bjections to the discretionary aspects of a sentence are generally waived if they are not raised at the sent encing hearing or in a motion to modify the sentence imposed.” Commonwealth v. Griffin , 65 A.3d 932, 935 (Pa. Super. 2013). Appellant’s motion for reconsideration of sentence was not filed in a timely fashion. See footnote 5, supra . Additionally, Appellant did not raise this issue at his sentencing hearing. See N.T., 9/22/2014. Therefore, Appellant has not preserved this issue, and it is w aived. An issue that is

waived is frivolous. See Commonwealth v. Kalichak , 943 A.2d 285, 291 (Pa. Super. 2008) (holding that when an issue has b een waived, “pursuing th[e] matter on direct appeal is frivolous”). Consequently, we agree with counsel that this appea l is wholly frivolous. For these reasons, we affirm the judgme nt of sentence and grant counsel’s petition to withdraw. Judgment of sentence affirmed. Petition to withdra w granted. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 6/24/2015