No. 80-1-139, Appeal from denial of post-conviction relief dated September 26, 1979 Court of Common Pleas Criminal Division Crawford County, No's. 46 and 299 of 1976
Michael M. Mamula, Richard E. Goldinger, Nancy T. Blewett, Butler, for appellant.
Robert J. Felton, Asst. Dist. Atty., Meadville, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ.
This is an appeal from a dismissal without a hearing of appellant's pro se petition filed under the Post Conviction Hearing Act (PCHA)*fn1 by the Court of Common Pleas of Crawford County. For the reasons stated hereinafter, we remand this case for proceedings consistent with this opinion.
On November 9, 1976, appellant entered a negotiated plea of guilty to murder generally and to six counts of recklessly endangering another person. Other charges were nol prossed pursuant to the plea bargain wherein the Commonwealth certified that the degree of homicide would rise no higher than murder of the third degree. A degree of guilt hearing then determined the murder to be that of the third degree. On January 25, 1977, appellant was sentenced to ten to twenty years on the murder conviction and to consecutive sentences of two to twelve years on the recklessly endangering convictions. Appellant did not file a petition to withdraw the guilty plea and no direct appeal was taken.
On March 28, 1977, appellant filed a pro se PCHA petition. This petition was returned to appellant as being in violation of the PCHA.*fn2 A second pro se petition was then filed on May 10, 1977, wherein appellant again attempted to state his position and requested the appointment of counsel other than his guilty plea counsel. By order of the lower court new counsel was appointed and oral argument was set for
June 6, 1977. Newly appointed counsel then moved for a continuance, claiming that he had not received certain information essential to the preparation of his argument, and argument was postponed indefinitely by the court below. Some eleven months later, in an order filed May 4, 1978, the court explained that argument had actually been postponed on the ground that appellant had retained private counsel, that neither the court nor appointed counsel had heard from "any private counsel" and that the proceedings should not be further delayed without the consent of appellant. Argument was then fixed for May 26, 1978.
In a motion filed May 12, 1978, appellant acknowledged that he had retained private counsel and successfully moved to postpone the scheduled argument so that he might meet ...