Com. v. Guzman, E. ( 2016 )

J-S65033-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EDWIN JAVIER GUZMAN, JR.,
Appellant No. 267 WDA 2016
Appeal from the PCRA Order January 6, 2016
in the Court of Common Pleas of Erie County
Criminal Division at No.: CP-25-CR-0000461-2010
BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*
JUDGMENT ORDER BY PLATT, J.: FILED: December 7, 2016
Appellant, Edwin Javier Guzman, Jr., appeals from the order denying
his first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546, as untimely. We remand.
We provide the following relevant procedural background. This case
returns to us after remand. On September 14, 2015, Appellant filed a pro se
“Petition to Correct Illegal Sentence Pursuant to the Court’s Inherent
Jurisdiction to Correct,” which the court properly treated as a first PCRA
petition. The court appointed PCRA counsel, who filed a supplemental
petition on October 20, 2015. On December 10, 2015, the PCRA court
issued a notice of its intent to dismiss Appellant’s petition without a hearing.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S65033-16
See Pa.R.Crim.P. 907(1). Appellant did not respond, and the court
dismissed the petition as untimely on January 6, 2016. On February 2,
2016, Appellant filed a timely pro se notice of appeal, although the docket
and the record indicated that he was still represented by PCRA counsel.
On August 23, 2016, this Court remanded this matter to the PCRA
court for it to conduct a Grazier1 hearing to determine if Appellant had
knowingly, intelligently, and voluntarily waived his right to counsel. After
conducting the hearing, the court determined that Appellant did not intend
to waive his right to counsel, and assigned new PCRA counsel to represent
him in this appeal. (See Order, 9/30/16). On October 6, 2016, new counsel
filed an amended statement of errors complained of on appeal pursuant to
the PCRA court’s order. See Pa.R.A.P. 1925(b).2 On October 13, 2016, this
Court received the certified record. However, counsel has failed either to file
an advocate’s brief or to proceed under Turner/Finley.3 See Pa.R.A.P.
2185(a)(1) (appellate brief shall be filed “within [forty] days after the date
on which the record is filed.”).
____________________________________________
1
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
2
The PCRA court filed an amended Rule 1925(a) opinion in which it relied on
the reasons stated in its December 10, 2015 notice to dismiss pursuant to
Pennsylvania Rule of Criminal Procedure 907(1). See Pa.R.A.P. 1925(a).
3
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
-2-
J-S65033-16
Accordingly, we remand this case for the PCRA court to conduct a
hearing to determine if appointed counsel has abandoned Appellant, and to
take whatever steps it deems necessary or appropriate to ensure that
Appellant has the “representation of counsel for purposes of litigating [his]
first PCRA petition through the entire appellate process.” Commonwealth
v. Robinson, 970 A.2d 455, 457 (Pa. Super. 2009) (citations omitted)
(emphasis added); see also Pa.R.Crim.P. 904(C).
Case remanded for proceedings consistent with this decision. Panel
jurisdiction retained.
-3-