No. 533 April Term, 1979, Appeal from the Order of the Court of Common Pleas of Indiana County at No. 279 Criminal 1976.
John H. Barbor, Indiana, for appellant.
Walter S. Vuckovich, District Attorney, Indiana, for Commonwealth, appellee.
Spaeth, Hoffman and Van der Voort, JJ. Van der Voort, J., files a dissenting opinion.
[ 284 Pa. Super. Page 195]
This is an appeal from an order dismissing without a hearing appellant's petition under the Post Conviction Hearing Act.*fn1
On September 2, 1976, appellant, represented by Donald R. Marsh, a public defender, pleaded guilty to the theft of an automobile.*fn2 He was sentenced by the lower court to a term of three to six years. Appellant filed neither a petition to withdraw the plea nor a direct appeal from his sentence. On February 28, 1977, appellant filed, pro se, a petition under the Post Conviction Hearing Act, alleging:
Petitioner was arrested in Huntingdon County because of a warrant issued by Magistrate Wilkins charging theft. Petitioner was not taken before a magistrate in the County of arrest, before being returned to the issuing authority, Which was Magistrate Wilkins.
Petitioner was under the impression Attorney Marsh was going to appeal the sentence, on the grounds the arrest was illegal.
In his petition appellant stated that he was indigent and requested the appointment of counsel. The lower court appointed Mr. Marsh as appellant's counsel, and issued a rule upon the Commonwealth to show cause why a hearing
[ 284 Pa. Super. Page 196]
should not be granted. No return was made by the Commonwealth.
On June 13, 1977, Mr. Marsh asked the lower court for permission to withdraw as appellant's counsel, stating that he would "be placed in the untenable position of being forced to argue against himself." The lower court granted permission, and appointed Thomas G. Johnson, also a public defender, as appellant's counsel.
On June 27, 1977, appellant filed, pro se, a habeas corpus petition with the lower court, asking the court to discharge him from confinement because of the Commonwealth's failure to make a return to the rule issued incident to appellant's PCHA petition.*fn3 On August 17, 1977, appellant, by Mr. Johnson as his counsel, petitioned for a hearing on his PCHA petition. On August 19 the lower court set September 9, 1977, as the date for the hearing. Apparently, however, this hearing was never held.*fn4
According to his brief, on September 28, 1977, appellant filed, pro se, an action in mandamus in the Commonwealth Court, again alleging that he was entitled to his freedom because of the Commonwealth's failure to make a return to the rule issued incident to his PCHA petition. This action was transferred to this court, and on November 10, 1977, at No. 1008 Miscellaneous Docket 1977, we denied relief per curiam. In December 1977 appellant filed, pro se, a habeas corpus petition in the United States District Court for the Western District of Pennsylvania. On January 5, 1978, Mr. Johnson asked the lower court for permission to withdraw as appellant's counsel, since appellant's PCHA petition appeared to allege incompetency of counsel on the part of Mr. Marsh and Mr. Johnson shared "official public defender duties with Attorney Marsh." The lower court granted permission, and appointed Gregory A. Olson as appellant's counsel. At some point*fn5 the lower court apparently set
[ 284 Pa. Super. Page 197]
another hearing date -- January 6, 1978 -- on appellant's PCHA petition, for on January 5, 1978, appellant, by Mr. Olson as his counsel, petitioned for and was granted a continuance of this hearing until the District Court had decided his habeas corpus petition.*fn6
On June 12, 1978, appellant filed, pro se, an amended PCHA petition, alleging:
Counsel did not get in touch with a witness for his testimony my co-defentant [ sic ] had informed me he would tell the truth and exonerate me of the charges. I informed counsel of this and he failed to contact him. Also the Judge failed to state his reason for imposing such a sentence. 3 to 6 years and co-defendant was sentenced to 3 months to one year.
Appellant also alleged that this issue was not waived "because of extraordinary circumstances ineffective counsel." On June 15 the lower court returned the amended petition to appellant for more information, specifically asking him to explain how his counsel could have been ineffective in failing to call a witness when instead of standing trial he had entered a guilty plea. In response to the court's request, on December 12, 1978, appellant filed, pro se, a second amended PCHA petition, alleging:
I ask my attorney Mr. Marsh to get in touch with my co-defendant before any plea was made as my co-defendant was willing to testifity [ sic ] on my behalf, counsel refused to do this therefore inducing me to enter a plea of guilty, he stated it would be a conflict of interest if he were to talk to my co-defendant as he had also represented him.
I was arrested without a warrant, when in fact was a warrant available at the time of arrest, deputy sheriffs had no jurisdiction to arrest me in Huntingdon County.
In an attachment to the petition appellant expanded on these allegations:
[ 284 Pa. Super. Page 198]
Petitioner informed court appointed counsel Mr. Marsh, he wanted to go to trial, this was five minutes before entering the courtroom, counsel asked petitioner if he had any defense and petitioner advised counsel he did have a witness or two, mainly he had and wanted co-defendant to testifity [ sic ] on his behalf. Counsel stated in no way could he talk to the co-defendant concerning the possibitle [ sic ] of the co-defendant testifing [ sic ] on behalf of the petitioner, as he had represented the co-defendant also. Counsel stated there would be a conflict of interest if he were to do that, he also stated petitioner would not be allowed to subpoena the co-defendant. Counsel went so far as to say "you won't get more than a year maximum, trust me." . . . .
Petitioner also alleges the original arrest was illegal as deputy sheriff's [ sic ] from Indiana County came to Huntingdon County and arresyed [ sic ] petitioner without a warrant when they in fact knew a warrant was available to them. They stated to petitioner at Huntingdon the Clymer Police have a warrant for your arrest, we were susposed [ sic ] to wait for them to come along but he was late so we left without him. Petitioner ask counsel to file a pre-trial motion on the grounds the arrest was illegal, counsel failed to do this, another round of ineffective assistance of counsel.
On January 15, 1979, the lower court, without a hearing, entered an order denying appellant's PCHA petition, as twice amended, on the following grounds:
1. The Court is of the opinion that the grounds contained in the Petition are frivolous in view of previous Petitions filed and in view of the circumstances involving the plea colloquy entered into on September 2, 1976.
2. The Petitioner's allegations that he desired to present witnesses and to have a trial is purely without foundation in view of the plea colloquy entered into by the Court and Petitioner.
3. The Petitioner's allegations with regard to a warrantless arrest is without foundation and is now not appealable because of the fact of the entry of a plea.
[ 284 Pa. Super. Page 1994]
. The Court further finds that at the time of the entry of his plea the Petitioner was a thirty year old habitual offender ...