J-S07005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: A.B., A MINOR               IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
APPEAL OF: A.B., A MINOR
                                                     No. 999 EDA 2017


              Appeal from the Order Entered February 21, 2017
            In the Court of Common Pleas of Philadelphia County
             Juvenile Division at No(s): CP-51-JV-0001751-2016


BEFORE: BENDER, P.J.E., PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                          FILED MAY 07, 2018

      Appellant, A.B., a minor, appeals from the dispositional order entered

after he was adjudicated delinquent of rape, indecent assault, sexual assault,

terroristic threats, and involuntary deviate sexual intercourse. After careful

consideration, we are compelled to vacate Appellant’s dispositional order and

remand for further proceedings consistent with this memorandum.

      We need not set forth the facts underlying Appellant’s September 10,

2016 adjudication of delinquency for purposes of this appeal.      Following a

dispositional hearing on February 21, 2017, Appellant was committed to a

residential treatment facility.   During the delinquency and dispositional

proceedings, Appellant was represented by Theodore Gorka, Esq. On March

22, 2017, Attorney Gorka filed a timely notice of appeal on Appellant’s behalf.

Counsel also timely complied with the trial court’s order to file a Pa.R.A.P.
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1925(b) statement. Therein, Attorney Gorka set forth five claims, including

two allegations of his own ineffective assistance.1

       The trial court did not appoint Appellant new counsel upon receiving

Attorney Gorka’s Rule 1925(b) statement.           Thus, Attorney Gorka is still

representing Appellant on appeal, and counsel is again averring his own

ineffectiveness. See Appellant’s Brief at 10-12. In K.A.T., Jr., we held that

where an attorney for a juvenile is, in essence, arguing his or her own

ineffectiveness on direct appeal, “we will remand for the appointment of new

counsel except: (1) when it is clear from the record that counsel was

ineffective, or (2) when it is clear from the record that the ineffectiveness

claim is meritless.” K.A.T., Jr., 69 A.3d at 699. Here, after reviewing the

record before us, we cannot conclude that the record is clear regarding the

merit, or lack thereof, of either of the two ineffectiveness claims that Attorney

Gorka presented in Appellant’s Rule 1925(b) statement.

       Therefore, we remand for the trial court to appoint new counsel

forthwith. In light of this decision, we believe it is prudent to also vacate the

dispositional order, relinquish jurisdiction to the trial court, and direct that the

court allow new counsel to file a motion asserting any claim(s) of ineffective

assistance by Attorney Gorka that counsel discerns from the record. If counsel


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1 Assertions of counsel’s ineffectiveness may be addressed on direct appeal in
juvenile cases. See In re K.A.T., Jr., 69 A.3d 691, 697-98 (Pa. Super. 2013).




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files such a motion, the trial court may conduct a hearing regarding any

ineffectiveness claim(s) raised therein, develop a record regarding the

issue(s), and decide, in the first instance, if a new delinquency hearing is

warranted.2

       Order vacated. Case remanded for further proceedings consistent with

this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/7/18




____________________________________________


2 If the court determines that Appellant is not entitled to relief, it may re-
impose his disposition, from which Appellant may then file a timely notice of
appeal.

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