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COMMONWEALTH v. GIBSON (05/14/69)

THE SUPERIOR COURT OF PENNSYLVANIA


May 14, 1969

COMMONWEALTH
v.
GIBSON, APPELLANT.

Petition for post-conviction relief. Appeal, No. 287, April T., 1968, from order of Court of Quarter Sessions of Indiana County, March T., 1966, Nos. 125 to 128, inclusive, opinion by CLARK, P.J.

COUNSEL

Robert D. Douglass, for appellant; W. Thomas Malcolm, District Attorney, for Commonwealth, appellee.

Opinion PER CURIAM: The court below dismissed appellant's post-conviction petition which alleged only denial of the right to appeal from a guilty plea. It did not independently determine the legality of the sentence and voluntariness of the plea as required by Commonwealth v. Walters, 431 Pa. 74, n. 1 at 76, 244 A.2d 757 n. (1968). Appellant shall be allowed to amend his petition, if possible, to allege specific, non-frivolous facts not controverted by the record and pertaining to

[ 214 Pa. Super. Page 753]

    the sentence or plea which, if true, entitle him to relief. If such amendment is made, the necessary determination shall be made only after a full and fair evidentiary hearing on the facts alleged.

Accordingly, the order of the lower court is vacated and the record remanded for this determination.

19690514

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