J-S78019-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ROBERT JONATHAN ROE

Appellant No. 1045 MDA 2014

Appeal from the Judgment of Sentence May 21, 2014

In the Court of Common Pleas of Lackawanna County

Criminal Division at No(s): CP-35-0001417-2013

 CP-35-0003374-2009

BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.: FILED JANUARY 09, 2015

Appellant Robert Roe appeals from the judgment of sentence entered 

in the Lackawanna County Court of Common Pleas. Roe’s counsel filed an 

Anders1 brief and a petition to withdraw as counsel. We affirm the 

judgment of sentence and grant counsel’s petition to withdraw.

On March 23, 2010, Roe pled guilty to delivery of a controlled 

substance.2 The trial court sentenced him to 24 months’ intermediate 

punishment with the first three months to be served under house arrest.3 

____________________________________________

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

2 35 P.S. § 780-113(a)(30). 

3 The March 2010 conviction and sentence are docketed at No. CP-35-

0003374-2009.
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On August 12, 2013, Roe pled guilty to possession of a small amount 

of marijuana.4 Because of this new charge, Roe received a notice of 

violation of the intermediate punishment imposed for his March 2010 

conviction. 

On November 4, 2013, the court held a sentencing hearing for the 

August 2013 conviction and a Gagnon II5 hearing for the March 2010 

conviction. Roe stipulated that he violated the probation imposed for the 

March 2010 conviction. The sentencing court revoked the sentence imposed 

for the March 2010 conviction and resentenced Roe to four years’ restrictive 

intermediate punishment (“RIP”) with the first 90 days to be spent in prison 

followed by 90 days’ house arrest. For the August 2013 conviction, the 

court sentenced Roe to one month of probation consecutive to the sentence

imposed for the March 2010 conviction. 

On February 10, 2014, Roe tested positive for opiates and was 

charged with violating a condition of the probation imposed for both prior 

convictions. 

____________________________________________

4 35 P.S. § 780-113(a)(31). This conviction and sentence is docketed at No. 

CP-35-0001417-2013. Although Roe included both docket numbers in his 

notice of appeal, he does not challenge the sentence received at docket No. 

CP-35-0001417-2013.

5 Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 

(1973).
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On May 21, 2014, the court held a Gagnon II hearing. Roe admitted 

he violated a condition of probation. The court revoked his RIP sentence for 

the March 2010 conviction and resentenced Roe to 2 1⁄2 to 5 years’ 

incarceration.6 Order, 5/21/2014. The court revoked and reinstated Roe’s 

sentence for the August 2013 conviction. Id.

On June 2, 2014, Roe filed a motion for reconsideration of sentence, 

seeking permission to participate in the Salvation Army Rehabilitation 

Program. Petition for Reconsideration of Sentence, 6/2/2014, at ¶¶ 8-14. 

The court denied this motion on June 4, 2014. On June 19, 2014, Roe 

appealed. On August 14, 2014, Roe’s counsel filed a statement pursuant to 

Pennsylvania Rule of Appellate Procedure 1925(b). The trial court did not 

file a 1925(a) Opinion. On September 29, 2014, Roe’s counsel filed a 

petition to withdraw and an Anders brief. Counsel sent a copy of both 

documents to Roe. Letter to Appellant, September 26, 2014, attached as 

Exh. A to the Petition to Withdraw as Counsel [hereinafter Letter to 

Appellant].

Because Roe’s counsel filed a petition to withdraw pursuant to Anders

and its Pennsylvania counterpart, Commonwealth v. Santiago,

7 we must 

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6 The sentencing court initially sentenced Roe to 2 1/2 to 6 years’ 

incarceration and 2 years’ probation. On May 21, 2014, the court revoked 

this sentence because it exceeded the maximum sentence allowed and 

imposed a sentence of 2 1/2 to 5 years’ incarceration.

7 978 A.2d 349 (Pa.2009).
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address counsel’s petition before reviewing the merits of Roe’s underlying 

issues. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super.2007) 

(en banc). 

Prior to withdrawing as counsel on a direct appeal under Anders, 

counsel must file a brief that meets the requirements established by the 

Pennsylvania Supreme Court in Santiago. The brief 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. Counsel must also provide a copy of the 

Anders brief to the appellant, together with a letter that advises the 

appellant of his or her right to “(1) retain new counsel to pursue the appeal; 

(2) proceed pro se on appeal; or (3) raise any points that the appellant 

deems worthy of the court’s attention in addition to the points raised by 

counsel in the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349, 

353 (Pa.Super.2007). Substantial compliance with these requirements is 

sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 

(Pa.Super.2007). “After establishing that the antecedent requirements have 

been met, this Court must then make an independent evaluation of the 

record to determine whether the appeal is, in fact, wholly frivolous.” 

Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.2006).
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Roe’s counsel filed a petition to withdraw as counsel. The petition 

states counsel engaged in a thorough review of the record and the law in 

this matter and determined that any appeal would be frivolous. Petition to 

Withdraw as Counsel, at ¶ 8; Letter to Appellant. Counsel notified Roe of 

the withdrawal request, supplied him with copies of the petition to withdraw 

and the Anders brief, and sent Roe a letter explaining his right to proceed 

pro se or with new, privately-retained counsel to raise any additional points 

or arguments that Roe believed had merit. See Petition; Letter to Appellant. 

In the Anders brief, counsel provides a summary of the facts and procedural 

history of the case with citations to the record, refers to evidence of record 

that might arguably support the issues raised on appeal, provides citations 

to relevant case law, states her conclusion that the appeal is wholly 

frivolous, and states her reasons for concluding the appeal is frivolous. 

Accordingly, counsel has substantially complied with the requirements of 

Anders and Santiago.

Appellant has not filed a pro se brief or a counseled brief with new, 

privately-retained counsel. We, therefore, review this appeal based on the 

issues of arguable merit raised in the Anders brief:

A. Whether the lower court failed to take into consideration 

Appellant’s rehabilitation needs when it imposed its 

sentence?

B. Whether the sentence imposed in [CP-35-0003374-

2009] was inappropriately harsh and excessive and an 

abuse of discretion for a technical violation of his RIP 

punishment?
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C. Whether the lower court failed to state on the record 

the reasons for the sentence imposed in [CP-35-0003374-

2009] as required?

Anders Brief at 5.

The issues raise challenges to the discretionary aspects of Roe’s 

sentence. “Challenges to the discretionary aspects of sentencing do not 

entitle a petitioner to review as of right.” Commonwealth v. Allen, 24 

A.3d 1058, 1064 (Pa.Super.2011) (citing Commonwealth v. Sierra, 752 

A.2d 910, 912 (Pa.Super.2000)). Before this Court can address a 

discretionary challenge, an appellant must comply with the following 

requirements:

An appellant challenging the discretionary aspects of 

his sentence must invoke this Court’s jurisdiction by 

satisfying a four-part test: (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. 

Allen, 24 A.3d at 1064.

Roe filed a timely notice of appeal and included a statement of reasons 

pursuant to Rule 2119(f) in his brief. He, however, waived his second and 

third issues because he failed to preserve them in a post-sentence motion. 

See Allen, 24 A.3d at 1064; Commonwealth v. Lebarre, 961 A.2d 176, 
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178 (Pa.Super.2008) (challenge to the discretionary aspects of sentence 

waived if appellant does not raise it in a post-sentence motion).

To the extent Roe’s motion for reconsideration of sentence preserved 

his first issue, i.e., “[w]hether the lower court failed to take into 

consideration Appellant’s rehabilitation needs when it imposed its 

sentence,”8the claim fails to raise a substantial question. 

“The determination of whether a particular issue raises a substantial 

question is to be evaluated on a case-by-case basis.” Commonwealth v. 

Dunphy, 20 A.3d 1215, 1220 (Pa.Super.2011) (quoting Commonwealth v. 

Fiascki, 886 A.2d 261, 263 (Pa.Super.2005)). A substantial question exists 

where a defendant raises a plausible argument that the sentence violates a 

provision of the sentencing code or is contrary to the fundamental norms of 

the sentencing process. Id. (quoting Commonwealth v. Titus, 816 A.2d 

251, 255 (Pa.Super.2003)).

Roe’s claim that the court failed to consider his rehabilitative needs 

does not state a substantial question. See, e.g., Commonwealth v. 

Griffin, 65 A.3d 932, 936-37 (Pa.Super.2013) (collecting cases that find 

____________________________________________

8 The petition for reconsideration of sentence requested permission to 

participate in the Salvation Army Rehabilitation Program and stated Roe “is a 

product of particular circumstances and conditions of environment, but that 

these matters were not fully and completely expressed at the time of 

sentencing.” Petition for Reconsideration of Sentence, at ¶¶ 8-14.
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failure to consider rehabilitative needs does not present substantial 

question). Accordingly, we cannot review the claim.

In conclusion, we cannot review Roe’s claim that the court failed to 

consider his rehabilitative needs because the issue fails to raise a substantial 

question for our review. See Allen, 24 A.3d at 1064. In addition, he 

waived his claim that the sentence imposed was harsh and excessive and his 

claim that the trial court failed to state its reasons on the record because he 

failed to raise these issues in a post-sentence motion. See id.

Further, our independent review of the record has revealed no nonfrivolous claims that Roe could have raised, and we agree with counsel that 

this appeal is wholly frivolous. Accordingly, we affirm the judgment of 

sentence.

Judgment of sentence affirmed. Counsel’s petition to withdraw is 

granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/9/2015