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COMMONWEALTH PENNSYLVANIA v. LOUIS DIAZ (10/20/78)

decided: October 20, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
LOUIS DIAZ, A/K/A ANTONIO PABON, APPELLANT



No. 278 October Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section at No. 14 July Term, 1971.

COUNSEL

Lynne D. Miller, Assistant Defender, and Benjamin Lerner, Defender, Philadelphia, for appellant.

Deborah E. Glass, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a Concurring and Dissenting Opinion, in which Cercone, J., joins. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Price

[ 258 Pa. Super. Page 348]

After entering a guilty plea to burglary in 1973,*fn1 appellant was sentenced to three years probation. During the probationary period, appellant was arrested on charges of robbery.*fn2 Once again, after entering a guilty plea, he was sentenced to three years probation. Based on this conviction, a probation revocation hearing was scheduled for May 13, 1975. At the hearing, Judge Ribner found that appellant's attorney from the public defender's office was unprepared and continued the case. At the rescheduled hearing on September 25, 1975, appellant was represented by newly appointed private counsel. Appellant's probationary status was revoked after the hearing, and he was sentenced to one to three years imprisonment.

On this appeal, appellant, represented again by the public defender's office, contends that counsel at the September, 1975, hearing was ineffective for failing to assert that appellant was deprived of his right to a speedy hearing and for failing to investigate any mitigating facts underlying appellant's conviction for robbery, which constituted the sole

[ 258 Pa. Super. Page 349]

    alleged violation of probation. For the reasons set forth herein, we remand the case to the lower court for resentencing.

Appellant first argues counsel's ineffectiveness for failing to assert appellant's deprivation of a speedy revocation hearing. The date of appellant's plea on the burglary charge was December 20, 1974, and the date of the originally scheduled revocation hearing was May 13, 1975.

To determine whether counsel was ineffective, we must first ascertain whether there were reasonable grounds on which to pursue the omitted claims. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). It is well established that counsel cannot be held to be ineffective for failing to perform a futile act. Commonwealth v. Hubbard, supra; Commonwealth v. Hill, 450 Pa. 477, 301 A.2d 587 (1973). We find appellant's claim to be without "arguable merit."

Pa.R.Crim.P. 1409, as interpreted by our case law, requires the holding of a revocation hearing with "reasonable promptness" after probation officials know or reasonably should have known of the violation. Commonwealth v. Williams, 254 Pa. Super. 202, 385 A.2d 979 (1978); Commonwealth v. Holmes, 248 Pa. Super. 552, 375 A.2d 379 (1977); Commonwealth v. Lipton, 238 Pa. Super. 124, 352 A.2d 521 (1975) (dissenting opinion by Hoffman, J.). Where the violation consists of a crime for which the probationer is prosecuted, the revocation hearing must be held within a reasonable time after the conviction. E. g., Commonwealth v. Williams, supra. To determine whether an individual's rights under Pa.R.Crim.P. 1409 have been violated, we have repeatedly held that we must consider the length of and reasons for the delay as well as any prejudice inuring to the probationer. Commonwealth v. Holmes, supra.

The delay in the instant case involved four months and three weeks. The Commonwealth has not explained the reasons for the delay because the issue was not raised in the court below. The case need not be remanded ...


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