J. S44012/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

JOSEPH VANGOETHEM, : No. 1778 EDA 2015

:

 Appellant :

Appeal from the Judgment of Sentence, June 19, 2014,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0011551-2008

BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 11, 2016

Joseph Vangoethem appeals from the judgment of sentence entered 

on June 19, 2014, by the Court of Common Pleas of Philadelphia County 

following revocation of his probation. Shonda Williams, Assistant Defender, 

has filed a petition to withdraw, alleging that the appeal is frivolous, 

accompanied by an Anders brief.1 We will grant counsel’s withdrawal 

petition and affirm the judgment of sentence.

The trial court provided the following:

On January 23, 2009, [a]ppellant entered an 

open guilty plea to burglary, theft, forgery, and bad 

checks.[2] A [pre-sentence investigation (PSI)] was 

 

1 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. 

Santiago, 978 A.2d 349 (Pa. 2009).

2 18 Pa.C.S.A. § 3502(a), 18 Pa.C.S.A. § 3921(a), 18 Pa.C.S.A. 

§ 4101(a)(1), 18 Pa.C.S.A. § 4105(a)(1), respectively.
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ordered and sentence was deferred. Following 

receipt and review of the PSI, [a]ppellant was 

sentenced on March 24, 2009 to 21 to 50 months[’] 

state incarceration on burglary and [7 years’] 

probation on forgery. No further penalty was 

imposed on bad checks, and the theft charge 

merged.

Appellant was arrested on October 4, 2012, in 

Westmoreland County where he was eventually 

sentenced on July 16, 2013, to a 4 to 8 year state 

prison term on aggravated assault and a concurrent 

1 to 2 years on an escape charge.[Footnote 1]

[Footnote 1] [] Appellant got into a bar 

fight, was placed in the back of a patrol 

car and then fled the scene. He was 

apprehended and arrested a quarter mile 

away. A non-jury trial was held before 

the Hon. John E. Blahovec.

This conviction was in direct violation of the 

forgery probation. A [violation of probation (VOP)] 

hearing took place on June 19, 2014 resulting in 

revocation. He was sentenced to 2-5 years[’] state 

incarceration consecutive to the Westmoreland 

County sentence he was serving. 

On the same day, [appellant] wrote to his 

counsel at the Defender Association of Philadelphia 

advising that he wanted to file a motion to 

reconsider sentence and a direct appeal. Counsel 

filed a timely motion to reconsider sentence on 

June 27, 2014 which was denied on July 7, 2014. 

The Defender Association then failed to file a timely 

notice of appeal to the Superior Court and sentence 

became final on July 21, 2014. 

On July 23, 2014, [appellant] filed a counseled 

PCRA petition alleging ineffective assistance of 

counsel for failure to file a direct appeal.

On June 11, 2015, we reinstated [appellant’s] 

right to appeal the VOP sentence nunc pro tunc.
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Trial court opinion, 11/6/15 at 1-2.

Appellant raises the following issue for our review:

Did not the lower court err and abuse its discretion in 

revoking appellant’s probation and imposing a 

sentence of 2 to 5 years[’] incarceration, to be 

served consecutively to the underlying direct 

violation term of 4 to 8 years’ confinement, where 

this sentence was manifestly excessive and 

unreasonable?

Appellant’s brief at 3.

On February 19, 2016, Attorney Williams filed in this court a petition to 

withdraw as counsel and an Anders brief, wherein Attorney Williams states 

that there are no non-frivolous issues preserved for our review.

A request by appointed counsel to withdraw pursuant 

to Anders and Santiago gives rise to certain 

requirements and obligations, for both appointed 

counsel and this Court. Commonwealth v. 

Flowers, 113 A.3d 1246, 1247-1248 (Pa.Super. 

2015).

These requirements and the significant 

protection they provide to an Anders

appellant arise because a criminal 

defendant has a constitutional right to a 

direct appeal and to counsel on that 

appeal. Commonwealth v. Woods, 

939 A.2d 896, 898 (Pa.Super. 2007). 

This Court has summarized these 

requirements as follows:

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 
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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 additional 

points worthy of the Court’s 

attention.

Woods, 939 A.2d at 898 (citations 

omitted).

There are also requirements as to the 

precise content of an Anders brief:

The Anders brief that 

accompanies court-appointed 

counsel’s petition to 

withdraw . . . 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 
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point that have led to the 

conclusion that the appeal is 

frivolous.

Santiago, 978 A.2d at 361.

Id. at 1248. If this Court determines that appointed 

counsel has met these obligations, it is then our 

responsibility “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 1248. In so doing, we review not only the 

issues identified by appointed counsel in the Anders

brief, but examine all of the proceedings to “make 

certain that appointed counsel has not overlooked 

the existence of potentially non-frivolous issues.” 

Id.

Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).

Our review of Attorney Williams’ application to withdraw, supporting 

documentation, and Anders brief reveals that she has complied with all of 

the foregoing requirements. We note that counsel also furnished a copy of 

the brief to appellant, advised him of his right to retain new counsel, 

proceed pro se, and/or raise any additional points that he deems worthy of 

this court’s attention, and attached to the Anders petition a copy of the 

letter sent to appellant as required under Commonwealth v. Millisock, 

873 A.2d 748, 751 (Pa.Super. 2005). See Commonwealth v. Daniels, 

999 A.2d 590, 594 (Pa.Super. 2010) (“While the Supreme Court in 

Santiago set forth the new requirements for an Anders brief, which are 

quoted above, the holding did not abrogate the notice requirements set forth 

in Millisock that remain binding legal precedent.”). As Attorney Williams 
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has complied with all of the requirements set forth above, we conclude that 

counsel has satisfied the procedural requirements of Anders.

Once counsel has met 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.” Santiago, 978 A.2d at 355 n.5. 

Therefore, we now turn to the merits of appellant’s appeal.

The issue appellant raises challenges the discretionary aspects of his 

sentence.

Challenges to the discretionary aspects of sentencing 

do not entitle an appellant to review as of right. 

Commonwealth v. Sierra, [752 A.2d 910, 912 

(Pa.Super. 2000)]. An appellant challenging the 

discretionary aspects of his sentence must invoke 

this Court's jurisdiction by satisfying a four-part test:

[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).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010).
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Here, the record reflects that appellant failed to properly preserve this 

issue at sentencing or in a motion to reconsider and modify sentence. When 

a court revokes probation and imposes a new sentence, the defendant must 

preserve challenges to the discretionary aspects of that new sentence either 

by objecting during the revocation sentencing or by filing a post-sentence 

motion. Commonwealth v. Malovich, 903 A.2d 1247, 1251 (Pa. Super. 

2006). “A motion to modify a sentence imposed after a revocation shall be 

filed within 10 days of the date of imposition.” Pa.R.Crim.P. 708(E).

Here, a review of the record reveals that appellant failed to preserve 

his excessiveness claim at sentencing. (See notes of testimony, 6/19/14 at 

3-25.) Additionally, although appellant filed a petition to vacate and 

reconsider sentence in which he raised that issue, the record reflects that he 

filed his petition on July 7, 2014, which was 18 days after imposition of 

sentence and, therefore, untimely. See Pa.R.Crim.P. 703(E). Consequently, 

appellant is unable to satisfy the four-part test necessary to invoke this 

court’s jurisdiction, rendering this issue frivolous.

Moreover, our independent review of the entire record has not 

disclosed any potentially non-frivolous issues. Therefore, we grant counsel’s 

petition to withdraw, and we affirm the judgment of sentence.

Judgment of sentence affirmed. Petition to withdraw granted.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/11/2016