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COMMONWEALTH PENNSYLVANIA v. KENNETH DIXON (01/05/82)

filed: January 5, 1982.

COMMONWEALTH OF PENNSYLVANIA,
v.
KENNETH DIXON, APPELLANT



No. 2885 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Philadelphia County, at Nos. 2215-2216 January Term 1977 and Nos. 1004-1005 March Term 1977.

COUNSEL

Marc Reuben, Philadelphia, for appellant.

Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wickersham, McEwen and Popovich, JJ.

Author: Wickersham

[ 294 Pa. Super. Page 50]

On May 7, 1977, appellant Kenneth Dixon pled guilty to charges of burglary and attempted burglary arising out of two separate incidents. On June 7, 1977 the court imposed sentences of three years probation on both bills, to run concurrently. No direct appeal was filed.

On September 18, 1979, a hearing was held before the court on an alleged violation of probation. The court revoked probation and imposed concurrent sentences of imprisonment of not less than five nor more than ten years on each of the bills.

On March 12, 1980, defendant filed a pro se petition for relief pursuant to the Post Conviction Hearing Act.*fn1 Appellant alleged indigency and requested appointment of counsel. On December 1, 1980, the defendant's petition for relief under the Post Conviction Hearing Act was denied, without a hearing and without counsel having been appointed. Thereafter, the court appointed counsel to aid appellant in this appeal, which was taken from the order of December 1, 1980. We must, of course, reverse and remand.

In Commonwealth v. Blair, 470 Pa. 598, 369 A.2d 1153 (1977), the issue before the Supreme Court of Pennsylvania was whether the hearing court erred in summarily dismissing appellant's uncounselled PCHA petition. The court stated:

The Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, 19 P.S. § 1180-1 et seq. (Supp.1976-77) requires the appointment of counsel for indigent petitioners except where the claim is patently frivolous and without trace of support in the record. See 19 P.S. § 1180-12 (Supp.1976-77). Restated under the Act, the right of the trial court to summarily dismiss an uncounselled petition is contingent upon the substantive claim raised therein. However, this section of the Post Conviction Hearing Act has been superseded by Pennsylvania

[ 294 Pa. Super. Page 51]

Rule of Criminal Procedure 1503 (Adopted January 24, 1968. Effective August 1, 1968.)

Under the terms of Rule 1503(a) [Rule 1503(a) provides in pertinent part as follows: 'Except as provided in Rule 1504, when an unrepresented petitioner satisfies the court that he is unable to procure counsel, the court shall appoint counsel to represent him.'] the Court is mandated to provide counsel, upon request, in Post Conviction proceedings once petitioner satisfies the Court of his financial inability to ...


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