No. 1038 April Term, 1979, Appeal from the Order of the Court of Common Pleas of Butler County on the 2nd day of August, 1979, Criminal Division C.A. No. 86 of 1976, Book 64, p. 86.
Philip P. Lope, Zelienople, for appellant.
Robert F. Hawk, Assistant District Attorney, Butler, for Commonwealth, appellee.
Spaeth, Johnson and Popovich, JJ.
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This is an appeal from an order of the Court of Common Pleas, Butler County, summarily denying a petition for post-conviction relief filed by appellant. Because appellant did not receive the assistance of counsel in preparing his Post-Conviction Hearing Act*fn1 (PCHA) petition, we vacate the lower court's order and remand for proceedings consistent with this opinion.
Appellant was convicted of robbery by a jury.*fn2 Post-trial motions were denied*fn3 and appellant was sentenced to three to eight years imprisonment. A direct appeal was taken*fn4 to
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this Court and we affirmed by per curiam order. Commonwealth v. Hobson, 286 Pa. Super. 271, 428 A.2d 987 (1978). The Supreme Court denied allocatur on November 29, 1978.
On July 16, 1979, appellant filed a pro se PCHA petition*fn5 wherein he alleged indigency and the ineffectiveness of trial counsel. He also requested the appointment of counsel. The court below dismissed this petition without an evidentiary hearing or the appointment of counsel on the grounds that the ineffectiveness issue was waived and the claims attendant thereto were no longer viable, having been finally litigated.*fn6 We do not agree.
To begin with, as to the question of waiver, our Supreme Court has held that a post-conviction petition cannot be summarily disposed of, without appointment of counsel, on such ground. Commonwealth v. Minnick, 436 Pa. 42, 258 A.2d 515 (1969). The rationale being:
"The question of waiver is often a complicated legal one. There may be 'extraordinary circumstances' which will justify petitioner's failure to raise the issue. There may have been an intervening change in the law which will now entitle him to relief. And failure to raise an issue constitutes only a 'rebuttable presumption' of waiver. These are not the kinds of issues which we can expect an uncounseled petitioner to adequately deal with." (Citations omitted) Id., 436 Pa. at 45, 258 A.2d at 516-17.
Instantly, inasmuch as appellant alleged indigency and requested the appointment of counsel in the PCHA petition, the lower court erred in dismissing same without first assigning counsel to assist appellant. Commonwealth v. Alvarado, 488 Pa. 250, 412 A.2d 492 (1980). Given ...