J-A11026-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    THOMAS JAMES KOLLIAS                       :
                                               :
                       Appellant               :   No. 1463 MDA 2018

         Appeal from the Judgment of Sentence Entered August 3, 2018
       In the Court of Common Pleas of Berks County Criminal Division at
                        No(s): CP-06-CR-0002330-2003


BEFORE: BOWES, J., OLSON, J., and STABILE, J.

MEMORANDUM BY OLSON, J.:                                  FILED JUNE 11, 2019

        Appellant, Thomas James Kollias, appeals from the judgment of

sentence entered on August 3, 2018. We remand with instructions.

        On August 18, 2003, Appellant pleaded guilty to receiving stolen

property and criminal attempt to commit criminal trespass.1 That day, the

trial court sentenced Appellant to serve a term of one to two years in prison

for the receiving stolen property conviction, followed by a term of five years

of probation for the attempted criminal trespass conviction.

        On April 1, 2010, April 16, 2013, and December 1, 2016, the trial court

revoked Appellant’s probation and, each time, the trial court resentenced

Appellant to serve a term of probation for the underlying attempted criminal

trespass conviction. See Probation Order, 4/1/10, at 1 (sentencing Appellant

____________________________________________


1   18 Pa.C.S.A. §§ 3925(a) and 901(a), respectively.
J-A11026-19



to serve seven years of probation); Special Probation Order, 4/16/13, at 1

(sentencing Appellant to serve seven years of probation); Probation Order,

12/1/16, at 1 (sentencing Appellant to serve a term of four years of

probation).

       On July 3, 2018, while Appellant was still on probation, the Court of

Common Pleas of Delaware County sentenced Appellant to serve a term of

four to 23 months in jail for a simple assault conviction. See N.T. Revocation

Hearing, 8/3/18, at 2. As a result of Appellant’s arrest and conviction, the

Commonwealth began revocation of probation proceedings against Appellant.

       During the August 3, 2018 violation of probation hearing, Appellant

stipulated to violating his probation and the trial court resentenced Appellant

to serve a term of 20 months to five years in prison for the underlying

attempted criminal trespass conviction. Id. at 11.

       Following the denial of Appellant’s motion to modify sentence, Appellant

filed a timely notice of appeal. The trial court then ordered Appellant to file

and serve a concise statement of errors complained of on appeal, pursuant to

Pennsylvania Rule of Appellate Procedure 1925(b).          Trial Court Order,

10/2/18, at 1. Appellant’s counsel responded by filing a “statement of intent

to file an Anders/McClendon brief,”2 in accordance with Pennsylvania Rule



____________________________________________


2See Anders v. California, 386 U.S. 738 (1967) and Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).



                                           -2-
J-A11026-19



of Appellate Procedure 1925(c)(4).3              See Counsel’s Rule 1925(c)(4)

Statement, 10/3/18, at 1. The trial court filed a statement in lieu of opinion

and noted that, since “no viable errors have been identified,” it could not write

a substantive opinion. See Trial Court Opinion, 12/12/18, at 1.

        Appellant received new counsel on appeal and this new counsel declared

that she “respectfully disagrees with [the frivolity assessment of Appellant’s

prior counsel and that she] sees merit to this appeal.” Appellant’s Brief at 8.

As a result, Appellant’s counsel did not file an Anders brief or a petition to

withdraw in this Court; instead, Appellant’s counsel filed an advocate’s brief,

challenging the discretionary aspects of Appellant’s sentence. See Appellant’s

Brief at 1-24.

        Given this posture, we “remand for the filing of a [Rule 1925(b)]

Statement nunc pro tunc and for the preparation and filing of an opinion by

the” trial court. Pa.R.A.P. 1925(c)(3) (“If an appellant in a criminal case was


____________________________________________


3   Pennsylvania Rule of Appellate Procedure 1925(c)(4) provides:

          In a criminal case, counsel may file of record and serve on
          the    judge    a   statement     of    intent    to   file  an
          Anders/McClendon brief in lieu of filing a [Rule 1925(b)]
          Statement. If, upon review of the Anders/McClendon brief,
          the appellate court believes that there are arguably
          meritorious issues for review, those issues will not be waived;
          instead, the appellate court may remand for the filing of a
          [Rule 1925(b)] Statement, a supplemental opinion pursuant
          to Rule 1925(a), or both. Upon remand, the trial court may,
          but is not required to, replace appellant's counsel.

Pa.R.A.P. 1925(c)(4).

                                           -3-
J-A11026-19



ordered to file a [Rule 1925(b)] 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 [Rule 1925(b)] Statement nunc

pro tunc and for the preparation and filing of an opinion by the judge”).

      Appellant’s counsel shall have 30 days from the date this memorandum

is filed to file of record, and serve upon the trial court judge pursuant to

Pennsylvania Rule of Appellate Procedure 1925(b)(1), the Rule 1925(b)

statement. Appellant is reminded “that any issue not properly included in the

Statement timely filed and served pursuant to [Pennsylvania Rule of Appellate

Procedure 1925(b)] shall be deemed waived.” Pa.R.A.P. 1925(b)(3)(iv). The

trial court shall then file a responsive Rule 1925(a) opinion within 45 days of

the date Appellant files and serves the Rule 1925(b) statement. Appellant

shall file a supplemental brief, if necessary, within 20 days of receipt of the

trial court’s Rule 1925(a) opinion.        The Commonwealth shall file a

supplemental brief, if necessary, within 20 days of receipt of Appellant’s

supplemental brief.

      Case remanded with instructions. Panel jurisdiction retained.




                                     -4-
