J-A27024-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,          :     IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
                      Appellee         :
                                       :
           v.                          :
                                       :
MARQUELL HANSBREW,                     :
                                       :
                      Appellant        :     No. 49 WDA 2014


    Appeal from the Judgment of Sentence Entered November 26, 2013,
                In the Court of Common Pleas of Erie County,
             Criminal Division, at No. CP-25-CR-0001500-2013.


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.                       FILED OCTOBER 15, 2014

     Appellant, Marquell Hansbrew, appeals from the judgment of sentence

entered on November 26, 2013. Upon review, we remand with instructions.

     The record reflects that Appellant was represented at trial and during

sentencing by Attorney Michael DeJohn from the Public Defender’s Office. A

motion for post-sentence relief was filed by Attorney DeJohn, and that

motion was denied on December 9, 2013.      A different attorney, Attorney

Anthony Rodriques, filed a notice of appeal on Appellant’s behalf on

December 27, 2013.1     By order dated January 2, 2014, the trial court

directed that a statement pursuant to Pa.R.A.P. 1925(b) be filed within




1
  The record lacks any indication that Attorney Rodriques entered his
appearance on Appellant’s behalf prior to filing the notice of appeal.
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twenty-one days from the entry of the order.        The order also granted

Appellant the right to proceed in forma pauperis. Order, 1/2/14, at 1.

     Subsequently, Attorney DeJohn filed both a notice of appeal and a

Pa.R.A.P. 1925(b) statement on January 8, 2014.          Despite the Pa.R.A.P.

1925(b) statement being filed by Attorney DeJohn, Attorney Rodriques

inexplicably filed a motion for extension of time to file a Pa.R.A.P. 1925(b)

statement.    By order dated January 23, 2014, the trial court granted the

motion for extension of time to file a Pa.R.A.P. 1925(b) statement filed by

Attorney Rodriques, directing that the statement be filed on or before

February 10, 2014.      Trial Court Order, 1/23/14, at 1.      The trial court

subsequently issued an order that provided as follows:

           AND NOW, to-wit, this 27th day of January, 2014,
     inasmuch as Anthony Rodriques, Esquire has entered his
     appearance by the filing of a Notice of Appeal with the Superior
     Court on December 27, [2013], it is hereby ORDERED,
     ADJUDGED and DECREED Michael DeJohn, Esquire, and the
     Public Defender’s Office of Erie County are withdrawn from this
     case. Attorney Rodriques shall comply with this Court’s Order of
     January 23, 2013 and file a Concise Statement of Matters
     Complained of on Appeal on or before February 10, 2014.

Order, 1/27/14, at 1.

     On February 12, 2014, the trial court issued an order holding that,

because Appellant had failed to timely file his statement of matters

complained of on appeal pursuant to Pa.R.A.P. 1925(b), there were no

appellate issues to address and therefore, no further opinion would be




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issued. Trial Court Opinion, 2/12/14, at 1. The case was transmitted to this

Court on February 27, 2014.

     On March 11, 2014, Attorney Rodriques filed a motion to file a

Pa.R.A.P. 1925(b) statement nunc pro tunc. In it, counsel asserted that his

error alone was the reason that a Pa.R.A.P. 1925(b) statement was not filed

on Appellant’s behalf.     Motion to file concise statement of matters

complained of nunc pro tunc, 3/11/14, at 1-2.      The trial court issued an

order dated March 12, 2014, denying the motion on the basis that the record

had been forwarded to this Court.

     The failure to file a Rule 1925(b) statement, when so ordered by the

trial court, is per se ineffective assistance of counsel. Commonwealth v.

Mitchell, 986 A.2d 1241, 1244 n.4 (Pa. Super. 2009). Furthermore, Rule

1925(c)(3) provides:

     If an appellant in a criminal case was ordered to file a Statement
     and failed to do so such that the appellate court is convinced
     that counsel has been per se ineffective, the appellate court shall
     remand for the filing of a Statement nunc pro tunc and for the
     preparation and filing of an opinion by the judge.

Pa.R.A.P. 1925(c)(3).

     Therefore, we remand this matter and direct the trial court to order

Appellant to file a Pa.R.A.P. 1925(b) statement within twenty-one days of




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J-A27024-14



the trial court’s receipt of the record from the Superior Court Prothonotary.2

The trial court shall then prepare and file a Pa.R.A.P. 1925(a) opinion within

thirty days of the filing of the 1925(b) statement. Appellant shall file a brief

within thirty days of the filing of the Pa.R.A.P. 1925(a) opinion.          The

Commonwealth shall have thirty days to respond.         Thereafter, the record

shall be returned to this Court.

      Case remanded with instructions. Panel jurisdiction retained.




2
  Appellant has presented two claims of ineffective assistance of counsel in
his brief. We caution counsel that, if he is only raising ineffective assistance
of counsel claims, his issues will not be reviewable on direct appeal. See
Commonwealth v. Holmes, 79 A.2d 562, 563-564 (Pa. 2013)(absent
either good cause or exceptional circumstances and a waiver of post-
conviction review, claims of ineffective assistance of counsel must await
collateral review.).

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