Com. v. Schwenk, J. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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