In the Interest of: A.B., a Minor ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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