IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT

**COMMONWEALTH OF PENNSYLVANIA, Respondent** 

**v.**

**JAVIER GONZALEZ,**

**Petitioner :**  **: :**  **: :**  **: :**  **: :**  **: :**  **No. 646 EAL 2015 Petition for Allowance of Appeal from**  **the** Unpublished Memorandum and Order **of the Superior Court at No. 2544 EDA 2014 entered on October 15, 2015,**  affirming **the Order of the Philadelphia County Court of Common Pleas at No.**  **CP-51-CR-0004027-2007 entered on July 21, 2014** 

ORDER

PER CURIAM

AND NOW **, this 24 th**  **day of May, 2016, upon consideration of the**

**Commonwealth’s Answer to the Petition for Allowance o f Appeal, filed in response to**  **this Court’s order of May 4, 2016 (see attached), and i n view of the Commonwealth’s**  **agreement that the matter be remanded to the PCRA co urt 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 fu**  **rther ordered to direct new**

**counsel to determine whether a colorable claim of counse l 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.** **[646 EAL 2015] - 2** IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

**COMMONWEALTH OF PENNSYLVANIA, Respondent** 

**v.**

**JAVIER GONZALEZ,**

**Petitioner :**  **: :**  **: :**  **: :**  **: :**  **: :**  **No. 646 EAL 2015 Petition for Allowance of Appeal from**  **the Order of the Superior Court**

ORDER

PER CURIAM

AND NOW **, this 4 th**  **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 Reli ef 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 petiti**  **on, which is not included in the present record.**  **In denying relief primarily on grounds of untimeline ss, 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 identify**  **ing as a potential issue whether petitioner was entitled to PCRA review under the tim**  **e-bar exception addressed in [646 EAL 2015] - 3** 

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 assi**  **sted by new counsel, review was unavailable. Superior Court Majority Slip Op. at 1**  **1. The dissent responded by suggesting the proper course was appointment of new couns**  **el 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 n ow cites**  Bennett **in support of**

**his claim he should be entitled to a “limited extensio n” 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 abandon ment issues, the record**  **deficiency, and the PCRA court's denial of amendment — i t would be of benefit to the** 

**Court to have the views of the Commonwealth on wheth er 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 a ny factual or legal**  **defenses also available to the Commonwealth). Accordingly, the Commonwealth is hereby directed to fil**  **e an answer to the instant petition for allowance of appeal within 30 da**  **ys.**