                     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                                           :   the Unpublished Memorandum and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
