No. 67 October Term, 1979, (Journal No. 2228/1979), Appeal from the Order dated December 11, 1978 affirming the judgment of sentence dated February 8, 1978, in the Court of Common Pleas of Montgomery County, Pennsylvania, Criminal Division, at No. 2982-76.
Arthur J. King, Assistant Public Defender, Norristown, for appellant.
Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Brosky, Wickersham and Roberts, JJ.*fn* Wickersham, J., files a dissenting statement.
[ 281 Pa. Super. Page 28]
Appellant Joseph Crowley contends on this appeal that his Rule 1100 rights have been violated, and that his trial counsel was ineffective for failing to protect those rights. We agree, and accordingly reverse appellant's conviction.
A criminal complaint charging appellant with possessing implements for escape was filed on July 21, 1976. On January 7, 1977 the Commonwealth petitioned for an extension of time for commencement of trial pursuant to Rule 1100, claiming that no courtrooms were available before January 17, 1977, the 180th day. A hearing to consider this Commonwealth petition was scheduled for January 27. Appellant's counsel, however, did not appear at the hearing. As a result, the Commonwealth's uncontested petition was granted. Appellant was subsequently convicted and sentenced.
Represented by new counsel on appeal, appellant claimed that trial counsel was ineffective for failing to protect his Rule 1100 rights. This Court remanded the case for an evidentiary hearing, explaining:
[ 281 Pa. Super. Page 29]
"If on remand it is determined that counsel's decision not to contest the petition was reasonable, and not based on neglect, then counsel should not be held ineffective. If, however, it is determined that counsel had no reasonable basis for his failure to object, and that an objection would have been arguably meritorious, then the lower court should find counsel ineffective and award appellant a hearing on the petition. If, following such a hearing, the court determines that the extension was properly granted, then the judgment of sentence should be affirmed. If, however, the court determines that the extension should not have been granted, then the charges against appellant should be dismissed and appellant should be discharged."
Commonwealth v. Crowley, 259 Pa. Super. 204, 213-14, 393 A.2d 789, 793 (1978) (footnote omitted). On remand, the court of common pleas found that trial counsel's failure to appear resulted from "inattention or oversight." Indeed, trial counsel testified at the evidentiary hearing that he failed to oppose the Commonwealth's petition because his secretary quit and the proper papers were misplaced. The court concluded, however, that counsel was effective because even if he had opposed the Commonwealth's petition, it would properly have been granted. The court rested this conclusion on its view that the judicial delay which prompted the Commonwealth to seek the extension was a permissible delay.
It is the law in Pennsylvania that an extension under Rule 1100(c) may only be granted if "trial is scheduled for the earliest date consistent with the court's business; provided that if the delay is due to the court's inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided." Commonwealth v. Mayfield, 469 Pa. 214, 222, 364 A.2d 1345, 1349 (1976). This rule is based upon the recognition that "calendaring of cases lies ultimately within the power ...