Stephen H. Hutzelman, Erie, for appellant.
Robert H. Chase, Dist. Atty., Erie, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J., concurs in the result.
This is an appeal from the denial of two petitions filed under the Post-Conviction Hearing Act.*fn1 This Court consolidated these appeals for argument and disposition. Clarence Fiero was indicted for a murder which occurred on August 19, 1973. Subsequently a plea of guilty was entered to the charge of murder in the second degree*fn2 and conspiracy to commit armed robbery.*fn3 Sentence was imposed on February 25, 1974. No post-trial motions were submitted and appellant failed to file a direct appeal.
On March 8, 1974, appellant filed a PCHA petition in propria persona alleging several grounds for relief. Most critical was the absence of any allegation charging that he was denied his right to a direct appeal. See, Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Commonwealth v. Norman, 447 Pa. 217, 285 A.2d 523 (1971). This omission would normally
preclude review of any ground that was cognizable on direct appeal. Act of January 25, 1966, P.L. (1965) 1580, § 4, eff. March 1, 1966, 19 P.S. § 1180-4 (Supp.1974-75); Commonwealth v. Via, 455 Pa. 373, 316 A.2d 895 (1974). However, the present procedural posture makes this general rule inapplicable.
We have held that a theory of waiver or finally litigated cannot be predicated upon an uncounseled proceeding. Commonwealth v. Minnick, 436 Pa. 42, 258 A.2d 515 (1969).
Moreover, in this jurisdiction a first post-conviction hearing petition should not be dismissed where the petitioner is indigent and has requested counsel, without affording him representation in that proceeding, Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975); Commonwealth v. Mitchell, 427 Pa. 395, 235 A.2d 148 (1967); Commonwealth v. Richardson, 426 Pa. 419, 233 A.2d 183 (1967); Commonwealth v. Hoffman, 426 Pa. 226, 232 A.2d 623 (1967); Pa.R.Crim.P. 1504, 19 P.S. Appendix. These considerations were explored in Commonwealth v. Mitchell, supra, where we stated:
"We pause to note that the mandatory appointment requirement is a salutary one and best comports with efficient judicial administration and serious consideration of a prisoner's claims. Counsel's ability to frame the issues in a legally meaningful fashion insures the trial court that all relevant considerations will be brought to its attention. As recognized by the American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Post-Conviction Remedies § 4.4, at 66 (1967) [approved draft 1968]: 'It is a waste of valuable judicial manpower and an inefficient method of seriously treating the substantive merits of applications for ...