J-S22010-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MICHAEL ROMAN

                            Appellant                 No. 839 WDA 2014


             Appeal from the Judgment of Sentence April 17, 2014
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0000029-2014
                                          CP-25-CR-0001311-2013
                                          CP-25-CR-0001314-2013
                                          CP-25-CR-0001317-2013
                                          CP-25-CR-0001319-2014
                                          CP-25-CR-0002074-2013
                                          CP-25-CR-0002115-2013


BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.*

JUDGMENT ORDER BY PANELLA, J.                              FILED MAY 22, 2015

        Appellant, Michael Roman, appeals from the judgment of sentence

entered April 17, 2014, in the Court of Common Pleas of Erie County. We

are constrained to remand for the appointment of new counsel, with

instructions.

        We note that although counsel herein, Jason A. Checque, Esquire,

seeks to withdraw from this appeal on the basis of frivolity, he has failed to

file a petition to withdraw as counsel, thus rendering his attempt to proceed

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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under Anders v. California, 386 U.S. 738 (1967), Commonwealth v.

McClendon, 434 A.2d 1185 (Pa. 1981), and their progeny deficient. By per

curiam Order entered December 18, 2014, this Court directed counsel to file

a petition to withdraw as counsel as follows:

             AND NOW, upon review of the Brief for Appellant, filed on
      September 8, 2014, by Jason A. Checque, Esquire, it would
      appear that by inclusion within the Argument section of the brief
      of a "Part B -- Santiago Argument", at pages 11-12, in which
      counsel argues the sole issue raised is non-frivolous, counsel for
      appellant has attempted to file an Anders brief pursuant to
      Anders v. California, 386 U.S. 738 (1967), Commonwealth
      v. McClendon, 434 A.2d 1185 (Pa. 1981), and Commonwealth
      v. Santiago, 978 A.2d 349 (Pa. 2009). However, counsel has
      failed to file a contemporaneous petition to withdraw as counsel
      as required. See Commonwealth v. Goodwin, 928 A.2d 287,
      290 (Pa.Super. 2007)(en banc; "When faced with a purported
      Anders brief, this Court may not review the merits of any
      possible underlying issues without first examining counsel's
      request to withdraw."); Commonwealth v. Wrecks, 931 A.2d
      717, 721 (Pa.Super.2007)(“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 be wholly frivolous."). Nor has counsel filed the required
      notice letter addressed to the appellant explaining appellant's
      rights under Anders and enclosing copies of the Anders brief
      and petition to withdraw as counsel. The notice letter is used by
      counsel to advise the appellant of the rights associated with the
      Anders process to this Court. See Commonwealth v. Woods,
      939 A.2d 896, 900 (Pa.Super. 2007)(citing Commonwealth v.
      Millisock, 873 A.2d 748, 752 (Pa.Super. 2005)). Accordingly,
      within fourteen (14) days of the date of this Order, counsel is
      directed to comply with the dictates of the Anders requirements
      and file a petition to withdraw as counsel with this Court, with an
      accompanying notice letter to appellant-Roman enclosing a copy
      of both the petition to withdraw as counsel and Anders brief,
      and explaining to appellant-Roman his rights in compliance the
      dictates of Anders and Woods.

Per Curiam Order, 12/18/14.


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J-S22010-15



      As of the date of this writing, Attorney Checque has not responded to

this Court’s Order of December 18, nor filed a petition to withdraw with this

Court.   Such inaction is simply unacceptable and we admonish Attorney

Checque’s quiescence.     His unprofessional conduct has needlessly delayed

the resolution of this appeal.

      Since we may not address the merits of the issues raised on appeal

without first reviewing the request to withdraw, see Commonwealth v.

Rojas, 874 A.2d 638, 639 (Pa. Super. 2005), we cannot decide this case on

the merits until an appropriate Anders brief is filed.

      Accordingly,   we   direct   the   trial   court   “to   revoke   [counsel’s]

appointment and withhold any fees which would normally be paid for this

appeal and to appoint competent counsel to represent Appellant on appeal.”

Commonwealth v. McDaniels, 785 A.2d 120, 122 (Pa. Super. 2001). “If

[counsel] has received any fees for this appeal, he is directed to reimburse

the county forthwith the amount of said fees.” Id.

      Once the trial court appoints new counsel, we direct our Prothonotary

to set a new briefing schedule. New counsel is directed to review the record

and file either an advocate’s brief or a petition to withdraw as counsel and

accompanying Anders brief setting forth case law and citations to the

sentencing record indicating that the issues are wholly frivolous.

      Petition to withdraw denied. Case remanded with instructions. Panel

jurisdiction retained.




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