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COMMONWEALTH PENNSYLVANIA v. JOSEPH GRATKOWSKI (06/05/81)

filed: June 5, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH GRATKOWSKI, A/K/A JOSEPH ANTHONY, APPELLANT



No. 810 April Term, 1978, Appeal from the Order of the Court of Common Pleas of Erie County, Criminal Division, at No. 1986 of 1976.

COUNSEL

Marilyn C. Fisher, Erie, for appellant.

Shad Connelly, Assistant District Attorney, Erie, for Commonwealth, appellee.

Cavanaugh, Hoffman and Van der Voort, JJ. Cavanaugh, J., files a concurring statement.

Author: Van Der Voort

[ 287 Pa. Super. Page 494]

A criminal complaint was filed against appellant on January 8, 1976, charging him with theft by deception.*fn1 Appellant was not arrested until September 10, 1976, at which time he was found in Erie County. A preliminary hearing was scheduled for September 16, 1976 but was continued at the request of the Commonwealth. A preliminary hearing was held on September 28, 1976, after which appellant was held for trial. On November 15, 1976 appellant pleaded guilty and was sentenced to a term of two to five years incarceration.

On July 3, 1977, appellant filed a Post Conviction Hearing Act petition alleging: ineffective assistance of trial counsel; an unlawfully induced guilty plea; and several other complaints. An evidentiary hearing was scheduled. Prior to

[ 287 Pa. Super. Page 495]

    the hearing the parties agreed that the only issues before the court were: whether trial counsel was ineffective for failing to file a motion to dismiss the indictment based on a violation of Rule 1100, Pa.R.Crim.P. which requires a defendant be brought to trial within 180 days of the filing of the complaint; and whether trial counsel was ineffective for failing to petition for a reconsideration of the sentence. The court, after taking testimony, entered an order on March 6, 1978, dismissing appellant's petition. On March 30, 1978, appellant filed a notice of appeal from the above order. On May 10, 1978, the lower court pursuant to Rule 1925, Pa.R.App.P. ordered appellant to file a concise statement of the matters complained of on appeal. Such statement of issues was filed on October 15, 1979. The court, on October 22, 1979, filed its statement for denying the P.C.H.A. petition. Appellant in the interval had filed a second P.C.H.A. petition on July 13, 1978; this petition was dismissed without a hearing on July 31, 1978.

Appellant's contentions on this appeal are that counsel was ineffective in four respects:

1) she failed to petition to quash the indictment for violations of Rule 1100;

2) counsel failed to complain of the delay in the ...


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