The opinion
J-S50032-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAVIER GONZALEZ
Appellant No. 2544 EDA 2014
Appeal from the PCRA Order July 21, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004027-2007
BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.
DISSENTING STATEMENT BY PANELLA, J. FILED OCTOBER 15, 2015
As the Majority correctly notes, this appeal is a legal nullity since
Gonzalez filed the notice of appeal pro se while represented by counsel. As
such, it is apparent from the record that counsel abandoned Gonzalez prior
to filing a motion to withdraw. If this were the only apparent problem with
counsel’s stewardship of this case, I might join my esteemed colleagues in
the Majority in overlooking this deficiency in the interests of judicial
economy. It is, however, not the only problem. As the Majority again
correctly notes, there are several other issues with counsel’s performance in
this matter, including a failure to ensure that a copy of the counseled,
amended petition upon which this appeal is based was included in the
certified record on appeal.
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I am not comfortable “deducing” what is in a document that is not in
the certified record, as such a deduction is contrary to well-established case
law. See Roth Cash Register Company, Inc. v. Micro Systems, Inc.,
868 A.2d 1222, 1223 (Pa. Super. 2005). Furthermore, “[i]t is the obligation
of the appellant to make sure that the record forwarded to an appellate
court contains those documents necessary to allow a complete and judicious
assessment of the issues raised on appeal.” Everett Cash Mutual
Insurance Company v. T.H.E. Insurance Company, 804 A.2d 31, 34
(Pa. Super. 2002) (quoting Hrinkevich v. Hrinkevich, 676 A.2d 237, 240
(Pa. Super. 1996)). Thus, appointed counsel’s “inadequacies” further
prevent this Court from substantively addressing any issue on this appeal.
Nor am I willing to assume that effective counsel could not have
possibly found any claim or argument that qualified for an exception from
the time-bar. A facially untimely petition does “not preclude a court from
appointing counsel to aid an indigent petitioner in attempting to establish an
exception to the time-bar.” Commonwealth v. Smith, 818 A.2d 494, 499
(Pa. 2003). “[A]n indigent petitioner, who files his first PCRA petition, is
entitled to have counsel appointed to represent him during the
determination of whether any of the exceptions to the one-year time
limitation apply.” Id. If I were to apply the Majority’s reasoning, there
would never be any reason to appoint counsel to represent a petitioner
pursuant to a facially untimely petition; the courts could simply deduce what
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the petitioner wishes to argue, and presume that it could never be
successfully argued. Our Supreme Court has clearly provided that this is not
the way the system is designed to operate.
As a result, I have no confidence that Gonzalez has received his right
to effective assistance of counsel in pursuing his first PCRA petition. Rather,
upon the record before us, I conclude that counsel abandoned Gonzalez prior
to the filing of the notice of appeal and, further, prior to filing his motion to
withdraw. Thus, while I conclude that the appeal is a legal nullity, I would
provide Gonzalez with the remedies set forth in Commonwealth v.
Williamson, 21 A.3d 236 (Pa. Super. 2011). Contrary to the Majority’s
assertion, Williamson is directly on point here, as it involved abandonment
by counsel as evidenced by a failure to file an appeal. I would also deny the
petition to withdraw, and note that appointed counsel would retain the duty
to ensure that Gonzalez received notice of this decision in a prompt manner.
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