J-S29032-15 

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 

*Retired Senior Judge assigned to the Superior Court. 

COMMONWEALTH OF PENNSYLVANIA, 

 Appellee 

v. 

JOHN PATRICK AROSE, 

 Appellant 

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IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 

No. 1783 WDA 2014 

Appeal from the Judgment of Sentence Entered September 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 September 22, 2014 

judgment of sentence, which the trial court imposed after revoking 

Appellant’s probation. In addition, Appellant’s counsel 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 petition to withdraw. 

On January 20, 2014, Appellant was charged with three 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 exchange for a sentence of one 
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year of probation. On June 4, 2014, consistent with the plea agreement, he 

was sentenced to one year of probation. 

Because Appellant was serving a term of probation for prior 

convictions at the time of his new conviction, on September 22, 2014, 

Appellant appeared for a Gagnon II1 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 conviction was a violation of 

Appellant’s probation that had been imposed at cases 590, 591, 592, and 

593 of 2007.2 The court further pointed out that this was Appellant’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 controlled substance 

(marijuana) and possession of drug paraphernalia at case number 337 of 

2014.3 

Accordingly, the court revoked Appellant’s probation at docket 

numbers 590, 591, 592, and 593 of 2007 and sentenced him to an 

aggregate term of 5 to 10 years’ incarceration to be followed by three years 

of probation. The court also revoked Appellant’s probation 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 possession charge and was 

sentenced to 3 to 12 months’ incarceration on September 17, 2014. 
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and sentenced him to a consecutive 6 to 12 months’ incarceration. The 

court also determined that Appellant is eligible for the Recidivism Risk 

Reduction Incentive program.4

On October 20, 2014, Appellant filed a motion for reconsideration of 

sentence.5 That motion was denied on October 22, 2014, and Appellant 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 matter: 

Direct appeal counsel seeking to withdraw under Anders must 

file a petition averring that, after a conscientious examination of 

the record, counsel finds the appeal to be wholly frivolous. 

Counsel must also file an Anders brief setting forth issues that 

might arguably support the appeal along with any other 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 appellant 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 days 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 sentence, 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 sentence. 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, it was filed timely. 
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withdraw and remand the case with appropriate instructions 

(e.g., directing counsel either to comply with Anders or file an 

advocate’s brief on Appellant’s behalf). By contrast, if counsel’s 

petition and brief satisfy Anders, we will then undertake our 

own review of the appeal to determine if it is wholly frivolous. If 

the appeal is frivolous, we will grant the withdrawal petition and 

affirm the judgment of sentence. However, if there are nonfrivolous issues, we will deny the petition and remand 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, 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. 

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 whether the 

 

7

 Appellant has not responded to counsel’s application to withdraw. 
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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 abused its discretion when 

it revoked Appellant’s probation and re-sentenced him 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 eleven (11) years for 

[A]ppellant’s violation of probation.”8

It is well settled that, with regard to the discretionary aspects of 

sentencing, there is no automatic right to appeal. 

Before [this Court may] reach the merits of [a challenge to 

the discretionary aspects of a sentence], we must engage 

in a four part analysis to determine: (1) whether the 

appeal is timely; (2) whether Appellant preserved his 

issue; (3) whether Appellant’s brief includes a concise 

statement of the reasons relied upon for allowance of 

appeal with respect to the discretionary aspects of

sentence; and (4) whether the concise statement raises a 

substantial question that the sentence is appropriate under 

the sentencing code.... [I]f the appeal satisfies each of 

these four requirements, we will then proceed to decide 

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 challenges 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). 
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Instantly, has satisfied the first requirement by filing timely a notice of 

appeal. To satisfy the second requirement regarding preservation, we point 

out that “[o]bjections to the discretionary aspects of a sentence are 

generally waived if they are not raised at the sentencing 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 waived. 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 been waived, “pursuing 

th[e] matter on direct appeal is frivolous”). 

Consequently, we agree with counsel that this appeal is wholly 

frivolous. For these reasons, we affirm the judgment of sentence and grant 

counsel’s petition to withdraw. 

Judgment of sentence affirmed. Petition to withdraw granted. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 6/24/2015