No. 198 Special Transfer Docket, APPEAL FROM THE ORDER OF THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY DATED DECEMBER 20, 1977, AS OF MARCH TERM, 1970, No. 473, DENYING A PETITION FOR POST-CONVICTION RELIEF WITHOUT A HEARING - CRIMINAL SECTION, TRIAL DIVISION.
Louis Lipschitz, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Chief, Appeals Division, Philadelphia, for Commonwealth, appellee.
Watkins, Manderino and Cirillo, JJ.*fn*
[ 270 Pa. Super. Page 381]
Appellant, Lester M. X. Hayes, shot and killed Elliot Glover in a Philadelphia bar on August 22, 1969. In exchange for the District Attorney's certification that the case rose no higher than second degree murder, appellant plead guilty to murder generally on October 29, 1970. The trial judge found appellant guilty of second degree murder, and ordered the maximum sentence of ten to twenty years imprisonment, to run consecutively to a fifteen year federal sentence already being served by appellant.
[ 270 Pa. Super. Page 382]
On November 16, 1970, before sentencing, appellant filed pro se motions for the appointment of new counsel and to withdraw his guilty plea. The lower court granted the petition for the appointment of new counsel, but following a hearing on February 24, 1971, at which appellant was represented by his newly appointed counsel, the motion to withdraw the guilty plea was denied and sentence imposed.
Appellant took no direct appeal from the denial of this motion. Three petitions for federal habeas corpus relief were denied for failure to exhaust state remedies.
Thereafter, appellant retained new counsel (his third), and filed a petition under The Post-Conviction Hearing Act*fn1 (hereafter "PCHA I"); but following an evidentiary hearing, the court denied relief. Denial of relief was affirmed by the Supreme Court. Commonwealth v. Hayes, 462 Pa. 291, 341 A.2d 85 (1975).
Thereafter, another petition for federal habeas corpus relief was filed and denied on April 26, 1976.
On May 26, 1976, appellant filed a second petition for Post-Conviction Relief (hereafter "PCHA II"). Present counsel, appellant's fourth defense attorney, filed an amended petition in which it was alleged that appellant had been denied the effective assistance of counsel in PCHA I hearings, and on appeal to the Supreme Court. Relief was denied without a hearing on December 20, 1977, on the basis that all issues raised were either finally litigated or waived. This appeal ensued. We remand.
Appellant alleges that he was denied the effective assistance of counsel at his PCHA I petition, and on the appeal therefrom. He bases his contention on essentially two grounds: (1) that counsel was ineffective for not arguing that the trial judge erred in imposing a sentence not in accordance with his plea bargain; and (2) that prior counsel was ineffective for ...