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COMMONWEALTH PENNSYLVANIA v. LAWRENCE MCCLINTON (04/28/80)

decided: April 28, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
LAWRENCE MCCLINTON, APPELLANT



No. 50 March Term, 1979, Appeal from Order of March 28, 1979, of the Court of Common Pleas, Criminal Division, of Lawrence County, at No. 395 of 1974.

COUNSEL

Norman A. Levine, Public Defender, New Castle, for appellant.

Donald E. Williams, Dist. Atty., New Castle, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ.

Author: O'brien

[ 488 Pa. Page 599]

OPINION OF THE COURT

This appeal is from an order of the Court of Common Pleas, Lawrence County, denying a petition for post-conviction relief filed by appellant, Lawrence McClinton.

Appellant was convicted by a jury of murder of the second degree and aggravated assault. Post-verdict motions were denied and appellant was sentenced to ten to twenty years imprisonment. A direct appeal was taken to this court and we affirmed by a per curiam order. Commonwealth v. McClinton, 471 Pa. 118, 369 A.2d 1223 (1977).

On September 28, 1978, appellant filed a pro se petition under the Post Conviction Hearing Act.*fn1 Appellant also requested that counsel be appointed to assist him, but counsel had not been appointed when the Court of Common Pleas denied appellant's petition without a hearing. After said denial, the Court of Common Pleas appointed the Lawrence County Public Defender to represent appellant on this appeal, which is now before us.

We do not reach the merits of appellant's arguments instantly. In Commonwealth v. Fiero, 462 Pa. 409, 412-13, 341 A.2d 448, 449-50 (1975), we stated:

"Moreover, in this jurisdiction a first post-conviction hearing petition should not be dismissed where the petitioner is indigent and has requested counsel, without affording him representation in that proceeding, Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975); Commonwealth v. Mitchell, 427 Pa. 395, 235 A.2d 148 (1967); Commonwealth v. Richardson, 426 Pa. 419, 233 A.2d 183 (1967); Commonwealth v. Hoffman, 426 Pa. 226, 232 A.2d 623 (1967); Pa.R.Crim.P. 1504, 19 P.S.Appendix. These

[ 488 Pa. Page 600]

    considerations were explored in Commonwealth v. Mitchell, ...


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