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COMMONWEALTH v. SCHMIDT (11/28/69)

SUPREME COURT OF PENNSYLVANIA


decided: November 28, 1969.

COMMONWEALTH
v.
SCHMIDT, APPELLANT

Appeal from judgment of Court of Oyer and Terminer and Quarter Sessions of Allegheny County, Sept. T., 1964, No. 111, in case of Commonwealth v. George Schmidt.

COUNSEL

John J. Dean, for appellant.

Carol Mary Los, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts.

Author: Roberts

[ 436 Pa. Page 139]

Appellant filed a petition under the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965),

[ 436 Pa. Page 1401580]

, 19 P.S. ยง 1180-1 et seq. (Supp. 1969), alleging, inter alia, that he was without financial resources to obtain counsel and requesting that counsel be appointed. The petition was dismissed without appointment of counsel and without a hearing.

Section 12 of the Post Conviction Hearing Act "imposes a mandatory requirement upon the trial court to appoint counsel for an indigent post-conviction applicant." Commonwealth v. Mitchell, 427 Pa. 395, 396, 235 A.2d 148, 149 (1967). Accord: Commonwealth v. Walters, 431 Pa. 74, 244 A.2d 757 (1968); Commonwealth v. Minnick, 427 Pa. 399, 235 A.2d 150 (1967); Commonwealth v. Hoffman, 426 Pa. 226, 232 A.2d 623 (1967) (per curiam); Commonwealth v. Richardson, 426 Pa. 419, 233 A.2d 183 (1967) (per curiam); see Pa. R. Crim. P. 1503(a) (when an unrepresented petitioner satisfies the court that he cannot procure counsel, "the court shall appoint counsel to represent him"). Summary disposition of a petition, without appointing counsel, is permitted only "when a previous petition involving the same issue or issues has been finally determined adversely to the petitioner and he . . . was represented by counsel in proceedings thereon." Pa. R. Crim. P. 1504.

In light of the above cases we hold that the appellant should have had counsel appointed to represent him in the Post Conviction Hearing Act proceedings. We note that the Commonwealth, through the District Attorney of the County of Allegheny, has filed a "Petition to Remand for Appointment of Counsel", in which it agrees with this disposition of the case. We therefore reverse the judgment of the hearing court and remand with instructions to appoint counsel and proceed in a manner consistent with this opinion.

Disposition

Judgment reversed and case remanded.

19691128

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