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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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, 2015 

in the Court of Common Pleas of Erie County Criminal 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 of 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 panel of this Court: 

On March 8, 2001, [Appellant] pled guilty at Docket No. 

314 of 2001 to one count of Possession [of a controlled 

substance] by Misrepresentation, Fraud, Deception or 

Subterfuge. The charge resulted on December 6, 2000, 

after [Appellant] went into a cabinet at Saint Vincent 

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). 
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Diazepam, which were later found in [Appellant’s] coat 

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 Docket No. 

916 of 2001 to an earlier charge of Retail Theft. On 

December 1, 2000, [Appellant] stole a Dewalt Cordless 

drill from [the] Home Depot Store located in Erie, Pa. As 

part of [Appellant’s] prior admission into Drug Court, 

[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) years [of] 

incarceration at Docket No. 314 of 2001 followed by a 

consecutive sentence of five (5) years [of] probation 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 omitted). 

According to Appellant’s pro se “motion to [q]uash arrest warrant and 

release formal detainer,” Erie County Probation Department filed a formal 

detainer on June 25, 2015, which contended he failed to report to his 

probation officer. Appellant’s Mot. to [Q]uash Arrest 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) (discussing prisoner 

mailbox rule). 
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2015, the court held a revocation of probation hearing and sentenced 

Appellant that day to eleven-and-one-half to twenty-three months’ 

imprisonment in Erie County prison for violating his 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 counsel, also filed a pro se

motion to reconsider and modify sentence, which was forwarded to counsel 

according to the docket. Appellant’s counsel timely appealed and 

simultaneously filed a Pa.R.A.P. 1925(c)(4) statement of intent to file an 

Anders brief. Counsel subsequently filed a petition to withdraw with this 

Court. 

“[T]his Court may not review the merits of the underlying issues 

without first passing on the request to withdraw.” Commonwealth v. 

Garang, 9 A.3d 237, 240 (Pa. Super. 2010) (citation omitted). 

[T]he three requirements that counsel must meet before 

he or she is permitted to withdraw from representation 

[are] as follows: 

First, counsel must petition the court for leave to

withdraw and state that after making a conscientious 

examination of the record, he has determined that 

the appeal is frivolous; second, he must file a brief 

refneerring to any issues in the record of arguable

merit; and third, he must furnish a copy of the brief 

to the defendant and advise him of his right to retain 
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new counsel or to himself raise any additional points 

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) 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. 

[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 decide 

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 history3 and referred to everything in the record that arguably 

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 consideration. We find that 

 

3

 Counsel did not cite to the record, however. 
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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 excessive, 

clearly unreasonable and inconsistent with the objectives 

of the Sentencing Code? 

Anders Brief at 3.4 Counsel asserts Appellant believes his sentence is 

excessive and unreasonable. We hold Appellant is due 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 of 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 sentence are 

generally waived if they are not raised at the sentencing 

 

4

 Appellant has not filed a pro se response. 
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hearing or raised in a motion to modify the sentence 

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 guidelines and 

what particular provision of the Code is violated (e.g., the 

sentence is outside the guidelines and the court did not 

offer any reasons either on the record or in writing, or 

double-counted factors already considered). Similarly, the 

Rule 2119(f) statement must specify what fundamental 

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 only a single claim: he 

should be incarcerated with the Department of Corrections, 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 that his sentence was 

manifestly excessive and otherwise inconsistent with 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 arguable 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.
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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