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COMMONWEALTH PENNSYLVANIA v. JOHN H. MITCHELL (05/11/79)

decided: May 11, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN H. MITCHELL, APPELLANT



No. 1866 October Term, 1977, Appeal from the Order of the Court of Common Pleas of Chester County at Nos. 229, 229F, 229F, 229G, September Term, 1972.

COUNSEL

John H. Mitchell, in pro. per.

Joan D. Lasensky, Assistant District Attorney, for Commonwealth, appellee.

Price, Judge. Spaeth, J., files a dissenting opinion. Jacobs, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Price

[ 266 Pa. Super. Page 46]

Appellant was convicted on September 20, 1972, and judgment of sentence imposed of seven and one-half (7 1/2) to fifteen (15) years imprisonment. His direct appeal was dismissed as untimely filed.

On November 9, 1973, appellant filed his first petition initiated under the Post Conviction Hearing Act*fn1 requesting permission to file a direct appeal nunc pro tunc. The court below, after finding appellant's appeal rights had been abridged by the untimely direct appeal, on February 20, 1974, granted the petition, and again a direct appeal was filed. We affirmed appellant's judgment of sentence in Commonwealth v. Mitchell, 231 Pa. Super. 738, 326 A.2d 887

[ 266 Pa. Super. Page 47]

(1974). No petition for allowance of appeal was filed with the supreme court.

On October 31, 1975, appellant filed his second petition, this time in the form of a writ of habeas corpus, but in fact a petition seeking PCHA relief. This petition was denied on December 11, 1975, without a hearing or the appointment of counsel. No appeal was taken.

On December 18, 1975, appellant filed a PCHA petition, his third petition, and on March 8, 1976, another PCHA petition, his fourth petition. Both of these petitions were dismissed, again without a hearing or the appointment of counsel. No appeal was taken.

Appellant filed his fifth petition, again a PCHA petition, on August 24, 1976, and on December 2, 1976, the court below ordered a hearing and appointed counsel. The hearing, held on February 11, 1977, resulted in a modification of appellant's sentence. No appeal was taken.

On April 14, 1977, appellant filed his sixth petition, also a PCHA petition, pro se, which was dismissed without appointment of counsel or hearing. The court below held that all of appellant's claims had been finally litigated or waived. This dismissal order was entered ...


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