Appeal, No. 10, May T., 1965, from order of Superior Court, March T., 1964, No. 30, affirming order of Court of Common Pleas of Dauphin County, June T., 1963, No. 580, in case of Commonwealth ex rel. John O'Lock v. Alfred T. Rundle, Warden. Orders reversed and new trial ordered.
John O'Lock, appellant, in propria persona.
Earl Richard Etzweiler, Assistant District Attorney, and Martin H. Lock, District Attorney, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE ROBERTS
In 1944, John O'Lock was indicted on numerous bills charging various felonious offenses, including several burglaries. Without the assistance of counsel at any stage, he entered pleas of guilty to all charges and was sentenced to an aggregate of 20 1/2 to 41 years imprisonment.
In 1951, with the aid of counsel, O'Lock filed a petition for writ of habeas corpus, the basic allegation of which was that he was unrepresented by counsel at the time he entered his guilty pleas. After an extensive hearing in 1952, the Court of Common Pleas of Dauphin County denied the petition on the then applicable ground that since neither a capital offense nor prejudice to petitioner was involved, counsel was not required.
In 1963, without counsel, petitioner again sought the issuance of a writ of habeas corpus. This petition was substantially similar to the 1951 petition, again raising particularly lack of counsel at the 1944 guilty
pleas.*fn1 However, O'Lock was now able to cite Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792 (1963), in support of his contention that his lack of counsel constituted a deprivation of due process of law.
The Court of Common Pleas of Dauphin County denied the present petition without hearing. After acknowledging the similarity between the 1951 and 1963 petitions, the court concluded that the Gideon case was not to be applied retroactively.*fn2 It went on to hold that, even if the Gideon rule were to be so applied, the rule had no bearing on this case because the petitioner had entered pleas of guilty. The court further held that petitioner would have waived any right to counsel because a plea of guilty would act as an automatic waiver of counsel. Waiver was also found in the fact that petitioner did not request counsel, even ...