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COMMONWEALTH v. JONES (09/22/75)

SUPERIOR COURT OF PENNSYLVANIA


decided: September 22, 1975.

COMMONWEALTH
v.
JONES, APPELLANT

Appeal from order of Court of Common Pleas of Montgomery County, April T., 1973, No. 880, and Nos. 1849 and 1850 of 1973, in case of Commonwealth of Pennsylvania v. Harold J. Jones.

COUNSEL

Calvin S. Drayer, Jr., Assistant Public Defender, for appellant.

Stewart J. Greenleaf and J. David Bean, Assistant District Attorneys, William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J.

Author: Cercone

[ 236 Pa. Super. Page 146]

Appellant filed a petition under the Post Conviction Hearing Act,*fn1 in which he attempted to raise several issues concerning his parole violation hearing. In such petition he also stated that he was without financial resources; and, he therefore requested appointment of counsel. The petition was dismissed without a hearing and counsel was not appointed.

The law in Pennsylvania clearly states that dismissal of a PCHA petition, without appointing counsel, is permitted only when a previous PCHA petition involving the same issue or issues has been finally determined adversely to the petitioner and petitioner was represented by counsel in the proceeding relating to such previous PCHA petition.

[ 236 Pa. Super. Page 147]

See Pa. R. Crim. P., Rules 1503, 1504; Commonwealth v. Schmidt, 436 Pa. 139 (1969); Commonwealth v. Mitchell, 427 Pa. 395 (1967); Commonwealth v. Richardson, 426 Pa. 419 (1967); and, Commonwealth v. Hoffman, 426 Pa. 226 (1967). Since the petition in question is appellant's first PCHA petition the lower court had no choice but to appoint counsel.

Accordingly this case is remanded with instructions to appoint counsel to aid appellant in the preparation of his PCHA petition and in any proceedings relating thereto.

Disposition

Case remanded.


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