IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 646 EAL 2015
:
Respondent : Petition for Allowance of Appeal from
: the Unpublished Memorandum and
: Order of the Superior Court at No. 2544
v. : EDA 2014 entered on October 15, 2015,
: affirming the Order of the Philadelphia
: County Court of Common Pleas at No.
JAVIER GONZALEZ, : CP-51-CR-0004027-2007 entered on
: July 21, 2014
Petitioner :
ORDER
PER CURIAM
AND NOW, this 24th day of May, 2016, upon consideration of the
Commonwealth’s Answer to the Petition for Allowance of Appeal, filed in response to
this Court’s order of May 4, 2016 (see attached), and in view of the Commonwealth’s
agreement that the matter be remanded to the PCRA court for appointment of new
PCRA counsel, the petition for allowance of appeal is GRANTED, the order of the
Superior Court is VACATED, and the matter is REMANDED to the PCRA court for
appointment of new PCRA counsel. The PCRA court is further ordered to direct new
counsel to determine whether a colorable claim of counsel abandonment on direct
appeal may be forwarded pursuant to Commonwealth v. Bennett, 930 A.2d 1264 (Pa.
2007), and if so, to file an amended PCRA petition raising that claim. Jurisdiction is
relinquished.
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 646 EAL 2015
:
Respondent : Petition for Allowance of Appeal from
: the Order of the Superior Court
:
v. :
:
:
JAVIER GONZALEZ, :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 4th day of May, 2016, the Court has for consideration the pro se
petition for allowance of appeal in this matter. The Commonwealth has elected not to
file an answer, as is its right to do without prejudice under Pa.R.A.P. 1116(a).
Upon review it appears that petitioner, who is serving a substantial sentence,
defaulted his direct appeal due to counsel abandonment, and did not invoke his
collateral review rights under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.
§§9541-9546, in a timely fashion. After petitioner filed a facially untimely pro se motion,
PCRA counsel was appointed and filed an amended petition, which is not included in
the present record.
In denying relief primarily on grounds of untimeliness, the PCRA court noted it
had not granted counsel leave to amend the pro se pleading. Upon appeal, PCRA
counsel was granted leave to withdraw, while identifying as a potential issue whether
petitioner was entitled to PCRA review under the time-bar exception addressed in
[646 EAL 2015] - 2
Commonwealth v Bennett, 930 A.2d 1264 (Pa. 2007) (defendant claiming counsel
effectively abandoned him on appeal may be entitled to application of exception to one-
year PCRA time limitation). Petitioner was left to proceed pro se in the Superior Court.
A divided Superior Court panel denied relief, with the majority postulating, among
other points, that as a matter of law, and even if assisted by new counsel, review was
unavailable. Superior Court Majority Slip Op. at 11. The dissent responded by
suggesting the proper course was appointment of new counsel for purposes of
determining whether a colorable Bennett claim could be forwarded. Superior Court
Dissenting Slip Op. at 1-3.
In his petition for allowance of appeal, petitioner now cites Bennett in support of
his claim he should be entitled to a “limited extension” of the one-year PCRA time-bar in
a situation that was beyond his control. Petition for Allowance of Appeal at 7. Under
these unusual circumstances — including the counsel abandonment issues, the record
deficiency, and the PCRA court's denial of amendment — it would be of benefit to the
Court to have the views of the Commonwealth on whether a remand to the PCRA court
for appointment of new counsel would be appropriate, to determine whether a colorable
Bennett claim in fact can be forwarded (subject, of course, to any factual or legal
defenses also available to the Commonwealth).
Accordingly, the Commonwealth is hereby directed to file an answer to the
instant petition for allowance of appeal within 30 days.
[646 EAL 2015] - 3