decided: July 2, 1981.
COMMONWEALTH OF PENNSYLVANIA
STANLEY G. CARRIER, JR., APPELLANT
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.
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OPINION OF THE COURT
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
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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 with private counsel and prepare his petition.
On August 3, 1978 private counsel entered his appearance and appointed counsel was permitted to formally withdraw.
Argument was finally heard on October 24, 1978, more than seventeen months after appellant filed his second pro se petition, and a brief was filed by private counsel; reargument was then scheduled for March 15, 1979. However, due to the illness and death of Senior Judge F. Joseph Thomas, reargument was not held until August 17, 1979. President Judge P. Richard Thomas, by opinion and order dated September 26, 1979, then dismissed the petition without granting an evidentiary hearing.
In the second prison drawn petition, no less than eight of the thirteen statutorily provided allegations of error were asserted on page two of the form petition. Appellant's factual assertions, however, appear to relate only to the alleged denial of effective assistance of counsel.
Despite the inarticulate nature of this petition, neither appointed counsel nor private counsel sought to amend the petition, or to otherwise meaningfully participate*fn3 during
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the seventeen month period that ensued between the appointment of counsel and oral argument. Indeed, the issue of appellant's representation appears to have been the subject of great confusion in the lower court, as evidenced by the indefinite postponement of and subsequent eleven month hiatus in the proceedings before the court below.
In a case such as this, where the prisoner has alleged no facts in support of seven out of the eight allegations of constitutional error asserted, and those which have been asserted are vague, rambling and incomplete, we are mindful of the consideration addressed by this Court in Commonwealth v. Mitchell, 427 Pa. 395, 235 A.2d 148 (1967) wherein the Court discussed the mandatory appointment requirement set forth in Section 12 of the PCHA, 19 P.S. § 1180-12:
Counsel's ability to frame the issues in a legally meaningful fashion insures the trial court that all relevant considerations will be brought to its attention. As recognized by the American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Post-Conviction Remedies § 4.4, at 66 (1967): "It is a waste of valuable judicial manpower and an inefficient method of seriously treating the substantive merits of applications for post-conviction relief to proceed without counsel for the applicants who have filed pro se. . . . Exploration of the legal grounds for complaint, investigation of the underlying facts, and more articulate statement[s] of claims are functions of an advocate that are inappropriate for a judge, or his staff."
Id., 427 Pa. at 397, 235 A.2d at 149.
Finally, and of primary importance to this case, we have held that the representation requirement "is not limited to the mere naming of an attorney to represent an accused, but
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also envisions that counsel so appointed shall have the opportunity and in fact discharge the responsibilities required by his representation." Commonwealth v. Fiero, 462 Pa. 409, 413, 341 A.2d 448, 450 (1975).*fn4
Under the circumstances of this case, an amended petition should have been filed and was necessary for adequate representation. Commonwealth v. Scott, 469 Pa. 381, 366 A.2d 225 (1976).*fn5 Thus, appellant's counsel has failed to discharge his responsibilities in this regard. Moreover, the pro se petition was dismissed without a counseled evidentiary hearing.
Therefore, finding no evidence of meaningful participation by counsel, we must conclude that the proceedings were, for all practical purposes, uncounselled and in violation of the representation requirement of the PCHA. Commonwealth v. Sangricco, 490 Pa. 126, 415 A.2d 65 (1980).
The order of the lower court is hereby vacated and the matter is remanded with instructions to afford appellant the opportunity to be represented by counsel in the filing of an amended petition. An evidentiary hearing should then be held, unless the allegations so raised are "patently frivolous and . . . without a trace of support either in the record or from other evidence submitted by the petitioner." 19 P.S. § 1180-9.