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[U] Commonwealth v. Heinzman

Superior Court of Pennsylvania

January 14, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JOHN DAVID HEINZMAN, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JOHN DAVID HEINZMAN, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence December 11, 2012 In the Court of Common Pleas of Montgomery County Criminal Division No(s).: CP-46-CR-0000603-2006, CP-46-CR-0000607-2006

BEFORE: ALLEN, MUNDY and FITZGERALD, [*] JJ.

MEMORANDUM

FITZGERALD, J.

Appellant, John David Heinzman, takes this counseled appeal from the judgment of sentence entered in the Montgomery County Court of Common Pleas. We remand for direct appeal counsel, Timothy Peter Wile, Esq., to file either an advocate's brief on behalf of Appellant or a petition to withdraw from representation and brief pursuant to Anders v. California, 386 U.S. 738 (1967), within thirty days of this memorandum.

Although counsel has not filed an Anders brief, he contends that the following claims are frivolous: that the trial court (1) abused its discretion in imposing a sentence of total confinement following the revocation of Appellant's probation; (2) violated 42 Pa.C.S. § 9733 and Pa.R.Crim.P. 703; and (3) should have credited Appellant for time spent confined prior to the September 25, 2008 revocation of his probation. Id. at 30, 35, 39, 43. Counsel, however, argues the court erred in failing to credit Appellant time in custody from November 4, 2005 through April 13, 2006. Id. at 46.

In Commonwealth v. Woods, 939 A.2d 896 (Pa.Super. 2007), counsel filed an Anders brief that did not satisfy the Anders requirements. Id. at 900. The brief, inter alia, did not conclude that the appeal was frivolous. Id. "Instead, the brief appear[ed] to argue, albeit in a summary, undeveloped fashion, that the plea was invalid." Id. This Court remanded the case directing counsel to file "either a properly developed advocate's brief or a new petition to withdraw and a new brief pursuant to Anders." Id. at 902.

Analogously, we find that counsel's brief fails to meet the mandates of either an Anders brief or an advocate's brief. See id. Therefore, we remand for counsel to file, within thirty days of the date of this memorandum, either a properly developed advocate's brief or a petition to withdraw and brief pursuant to Anders. If counsel files an Anders petition and brief, Appellant shall have the opportunity to file his own pro se brief or brief by newly retained counsel in accordance with a new briefing schedule determined by the Prothonotary.

Case remanded. Panel jurisdiction retained.

Judgment Entered.


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