J-S72024-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                         Appellee         :
                                          :
             v.                           :
                                          :
JAMES RICHARD SCHWENK,                    :
                                          :
                         Appellant        :     No. 565 WDA 2014


        Appeal from the Judgment of Sentence Entered March 14, 2014,
                 In the Court of Common Pleas of Erie County,
              Criminal Division, at No. CP-25-CR-0002496-2013.

BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY SHOGAN, J.:                         FILED JANUARY 30, 2015

       Appellant, James Richard Schwenk, appeals from the judgment of

sentence of twelve to sixty months of imprisonment entered in the Court of

Common Pleas of Erie County on March 14, 2014, following his conviction by

a jury of one count of retail theft. We remand.

       Following imposition of sentence, Appellant filed a motion to reconsider

sentence, which the trial court denied on March 24, 2014. On April 8, 2014,

Appellant filed a timely notice of appeal.    Appellant’s counsel concurrently

filed a Statement of Intent to File an Anders/McClendon Brief and a Motion

for Bail Pending Appeal. On April 16, 2014, the trial court denied bail and

issued an order pursuant to Pa.R.A.P. 1925(b). Thereafter, on May 6, 2014,

in lieu of filing an opinion pursuant to Pa.R.A.P. 1925(a), the trial court


*
    Retired Senior Judge assigned to the Superior Court.
J-S72024-14



issued an order directing the transmittal of the record to this Court, noting

that it “improvidently issued a Concise Statement Order . . .                   given

[defense counsel’s] Statement of Intent to File an Anders/McClendon

Brief . . . .” Order, 5/6/14, at 1 n.1 (emphasis added).

      Defense counsel filed a docketing statement with this Court on

April 21, 2014.     On June 2, 2014, new counsel, also with the public

defender’s office, entered her appearance on Appellant’s behalf and filed an

advocate’s brief without seeking to file a Rule 1925(b) statement nunc pro

tunc. As we stated in Commonwealth v. Myers, 897 A.2d 493 (Pa. Super.

2006), “[T]he proper course for this Court is to forbid the use of Anders as

a vehicle to circumvent the Rules of Appellate Procedure.” Id. at 496 (citing

Commonwealth v. West, 883 A.2d 654, 657–658 (Pa. Super. 2005)). See

also Pa.R.A.P. 1925(c)(3) (If a criminal appellant “was ordered to file a

[Concise] 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.”)

      Accordingly, we remand this case to the trial court for the filing of a

proper Pa.R.A.P. 1925(b) statement within thirty days of the filing of this

memorandum,       with   service   of   a   copy   on   the   trial   court   and   the

Commonwealth.       The trial court shall file an opinion within thirty days




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J-S72024-14



thereafter and certify the record to this Court. Appellant may file a new brief

or refile the current brief within thirty days of receipt of the trial court

opinion. The Commonwealth shall file its brief within thirty days of receipt of

Appellant’s brief.

      Case remanded. Panel jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/30/2015




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