No. 397 January Term 1977, Appeal from the Order of the Superior Court at No. 1036 October Term 1975.
Charles B. Coleman, Reading, for appellant.
J. Michael Morrissey, Dist. Atty., Reading, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. O'Brien, J., did not participate in the consideration or decision of this case. Pomeroy, former J., did not participate in the decision of this case.
Thomas Lutz was arrested on April 29, 1966, in New York City by federal authorities in connection with the kidnapping of Sherry Randle on April 28, 1966, in Berks County, Pennsylvania. He was convicted of various federal crimes in a Federal District Court on June 21, 1968, in connection with the kidnapping and sentenced to a term of imprisonment of six months to twenty years.*fn1
On May 26, 1967, a Berks County grand jury returned a twelve-count indictment against Lutz arising out of the kidnapping incident. On May 14, 1971, Lutz plead guilty in Berks County to certain counts in this indictment. The plea was part of a plea bargain approved by the court, and, in accordance with the plea bargain, prison sentences were imposed aggregating six years and eight months to fifteen years to begin upon Lutz's release from the federal imprisonment. Also, in accordance with the plea bargain, certain counts of the indictment were dismissed. Although Lutz was advised by the court of his appellate rights, an appeal was not entered from the judgments of sentence. Throughout the plea proceedings, Lutz was represented by a member of the public defender's office [hereinafter: trial counsel]. Lutz commenced serving the foregoing sentences on July 23, 1973.
On December 19, 1973, Lutz filed a pro se petition [hereinafter: first petition] under the Act of January 25, 1966, P.L. (1965) 1580, §§ 1 et seq., 19 P.S. §§ 1180-1 et seq. (Supp.1978-79) [hereinafter: PCHA]. The court appointed trial counsel to assist Lutz in this proceeding, and granted a rule
upon the Commonwealth to show cause why a hearing should not be held. The Commonwealth filed an answer to the petition, and the court set a hearing date for February 28, 1974.
On February 28, 1974, an assistant public defender other than trial counsel [hereinafter: second counsel] entered an appearance on behalf of Lutz. Also, on that date, the hearing on the first PCHA petition was continued until March 7, 1974. On March 7, 1974, the court granted a motion by second counsel to withdraw the first PCHA petition without prejudice.
On June 26, 1974, Lutz filed a second PCHA petition [hereinafter: second petition]. The court appointed second counsel to assist Lutz and granted a rule upon the Commonwealth to show cause why a hearing should not be conducted. The Commonwealth filed an answer to the second petition, and a hearing was scheduled for September 24, 1974. On September 13, 1974, the hearing was continued until October 3, 1974. The hearing was not held on that date for reasons not clear from the record. On December 23, 1974, the court rescheduled the hearing for January 27, 1975. On that date, the hearing was conducted, and second counsel ...