J-S42039-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA v. DAVID HOBAI Appellant No. 1747 WDA 2015

Appeal from the Judgment of Sentence October 6, 201 5 in the Court of Common Pleas of Erie County Crimina l Division

at No(s): CP-25-CR-0000916-2001 BEFORE: SHOGAN, OTT, and FITZGERALD, * JJ. MEMORANDUM BY FITZGERALD, J.: FILED: August 24, 2016 Appellant, David Hobai, appeals from the judgment o f sentence imposed following a violation-of-probation hearing and his underlying April 12, 2001 guilty plea for retail theft. 1 Appellant’s counsel has filed a petition to withdraw pursuant to Anders v. California , 386 U.S. 738 (1967), and Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009), with this Court. We grant counsel’s petition and affirm the judgment of sentence. We summarize the facts as set forth by a prior pane l of this Court: On March 8, 2001, [Appellant] pled guilty at Docket No. 314 of 2001 to one count of Possession [of a contro lled substance] by Misrepresentation, Fraud, Deception o r Subterfuge. The charge resulted on December 6, 200 0, after [Appellant] went into a cabinet at Saint Vinc ent Hospital in Erie, PA and obtained seven bottles of the drug

* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 3929(a)(1).J-S42039-16

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- Diazepam, which were later found in [Appellant’s] c oat pocket. On March 8, 2001, [Appellant] was sentenced to ten (10) years [of] Restrictive Intermediate Punishment at Docket No. 314 of 2001. This sentence was imposed as part of [Appellant’s] admission into Erie County’s Drug Court on March 8, 2001. On April 12, 2001, [Appellant] pled guilty at Docke t No. 916 of 2001 to an earlier charge of Retail Theft. On December 1, 2000, [Appellant] stole a Dewalt Cordle ss drill from [the] Home Depot Store located in Erie, Pa. As part of [Appellant’s] prior admission into Drug Cou rt, [Appellant] received a sentence of five (5) years [ of] probation consecutive to Count 1 at Docket No. 314 of 2001. On January 22, 2003, [Appellant’s] intermediate punishment and probation sentences were revoked. [Appellant] received two (2) years to ten (10) year s [of] incarceration at Docket No. 314 of 2001 followed by a consecutive sentence of five (5) years [of] probati on reimposed at Docket No. 916 of 2001.

Commonwealth v. Hobai , 566 & 577 WDA 2004, at 1-2 (Pa. Super. Nov. 8, 2004) (unpublished memorandum) (footnotes omitte d). According to Appellant’s pro se “motion to [q]uash arrest warrant and release formal detainer,” Erie County Probation Dep artment filed a formal detainer on June 25, 2015, which contended he faile d to report to his probation officer. Appellant’s Mot. to [Q]uash Arr est Warrant and Release Formal Detainer, 9/9/15, 2 at 1. Counsel was appointed. On October 6,

2 The motion was postmarked this date. See generally Commonwealth v. Wilson , 911 A.2d 942, 944 n.2 (Pa. Super. 2006) (discussi ng prisoner mailbox rule).J-S42039-16

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2015, the court held a revocation of probation hear ing and sentenced Appellant that day to eleven-and-one-half to twenty -three months’ imprisonment in Erie County prison for violating hi s probation. Appellant timely filed a post-sentence motion that requested a new sentence of up to two years’ incarceration with the Pennsylvania Department of Corrections instead of Erie County. Appellant’s Mot. for Post Sentence Relief, 10/8/15, at 1. The court denied Appellant’ s post-sentence motion on October 9, 2015. Appellant, while represented by c ounsel, also filed a pro se motion to reconsider and modify sentence, which was forwarded to counsel according to the docket. Appellant’s counsel timel y appealed and simultaneously filed a Pa.R.A.P. 1925(c)(4) stateme nt of intent to file an

Anders brief. Counsel subsequently filed a petition to w ithdraw with this

Court. “[T]his Court may not review the merits of the unde rlying issues without first passing on the request to withdraw.” Commonwealth v. Garang , 9 A.3d 237, 240 (Pa. Super. 2010) (citation omitt ed).

[T]he three requirements that counsel must meet bef ore he or she is permitted to withdraw from representat ion [are] as follows: First, counsel must petition the court for leave to withdraw and state that after making a conscientiou s examination of the record, he has determined that the appeal is frivolous; second, he must file a bri ef refneerring to any issues in the record of arguable merit; and third, he must furnish a copy of the bri ef to the defendant and advise him of his right to ret ainJ-S42039-16

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- new counsel or to himself raise any additional poin ts he deems worthy of the Superior Court’s attention.

Id. (citations omitted).

[I]n the Anders brief that accompanies court-appointed counsel’s petition to withdraw, counsel must: (1) p rovide a summary of the procedural history and facts, with c itations 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 frivo lous; and (4) state counsel’s reasons for concluding that the appeal is frivolous. Counsel should articulate the releva nt facts of record, controlling case law, and/or statutes on po int that have led to the conclusion that the appeal is frivo lous. Santiago , 978 A.2d at 361.

[I]n Pennsylvania, when counsel meets his or her obligations, “it then becomes the responsibility of the reviewing court to make a full examination of the proceedings and make an independent judgment to dec ide whether the appeal is in fact wholly frivolous.”

Id. at 355 n.5 (citation omitted). Instantly, counsel’s Anders brief summarized the factual and procedural history 3 and referred to everything in the record that argu ably supports the appeal. Counsel articulated the facts from the record, case law, and statutes that led counsel to conclude that the appeal is frivolous. Counsel furnished a copy of the brief to Appellant. Counsel also advised Appellant of his right to retain new counsel or to raise, pro se , any additional points that he deems worthy of the Court’s consider ation. We find that

3 Counsel did not cite to the record, however.J-S42039-16

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Appellant’s counsel has substantially complied with all the requirements set

forth above. See id. at 361; Garang , 9 A.3d at 240. Therefore, we now review the underlying issues on appeal. See Santiago , 978 A.2d at 355

n.5.

The Anders brief raises the following issue:

Whether [A]ppellant’s sentence is manifestly excess ive, clearly unreasonable and inconsistent with the obje ctives of the Sentencing Code?

Anders Brief at 3. 4 Counsel asserts Appellant believes his sentence i s excessive and unreasonable. We hold Appellant is d ue no relief.

This Court has stated that [c]hallenges to the discretionary aspects of sentencing do not entitle an appellant to appellate review as of right. Prior to reaching the merits o f a discretionary sentencing issue: [W]e 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). Objections to the discretionary aspects of a senten ce are generally waived if they are not raised at the sent encing

4 Appellant has not filed a pro se response.J-S42039-16

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- hearing or raised in a motion to modify the sentenc e imposed at that hearing.

Commonwealth v. Evans , 901 A.2d 528, 533-34 (Pa. Super. 2006) (some citations and punctuation omitted).

[T]he Rule 2119(f) statement must specify where the sentence falls in relation to the sentencing guidel ines and what particular provision of the Code is violated ( e.g. , the sentence is outside the guidelines and the court di d not offer any reasons either on the record or in writin g, or double-counted factors already considered). Simila rly, the Rule 2119(f) statement must specify what fundamenta l norm the sentence violates and the manner in which it violates that norm . . . . Commonwealth v. Googins , 748 A.2d 721, 727 (Pa. Super. 2000) ( en banc ). Instantly, Appellant timely appealed. See Evans , 901 A.2d at 533. Appellant’s post-sentence motion, however, raised o nly a single claim: he should be incarcerated with the Department of Corre ctions, and not Erie County Prison. See Appellant’s Mot. for Post Sentence Relief, 10/8/15, at 1. Appellant’s post-sentence motion did not assert tha t his sentence was manifestly excessive and otherwise inconsistent wit h the Sentencing Code. Appellant, therefore, has waived the issue. See Evans , 901 A.2d at 533-34. Accordingly, we deny Appellant permission to appeal . Our independent review of the record reveals no other issue of argu able merit. See Santiago , 978 A.2d at 355 n.5. We conclude that the appeal is frivolous and grant counsel’s petition for leave to withdraw.J-S42039-16

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Counsel’s petition for leave to withdraw granted. Judgment of

sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 8/24/2016