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COMMONWEALTH PENNSYLVANIA v. JOHN FAY (01/14/82)

filed: January 14, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN FAY, JR., APPELLANT



No. 1098 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas, Criminal Division, Somerset County, at No. 14 Criminal 1973.

COUNSEL

Kenneth W. Johnson, Rockwood, for appellant.

George B. Kaufman, Assistant District Attorney, Somerset, for Commonwealth, appellee.

Cercone, President Judge and Brosky and Hoffman, JJ.

Author: Cercone

[ 294 Pa. Super. Page 333]

Appellant, John Fay, Jr., takes this appeal from the order of the court below denying appellant relief under the Post Conviction Hearing Act*fn1 (PCHA). For the reasons set forth below, we find that the court erred and we reverse.

[ 294 Pa. Super. Page 334]

On December 22, 1972, a criminal complaint was filed in Somerset County against appellant charging him and two others with the offenses of armed robbery and conspiracy stemming from the holdup of a supermarket. Several months later, when appellant's case was called for trial, it was learned that appellant was then in a federal penitentiary serving a sentence of five to fifteen years for bank robbery, whereupon appellant's case was continued. Subsequently, appellant was temporarily transferred from the federal penitentiary to the Cambria County jail because appellant was at that time awaiting trial in Cambria County on a charge of criminal homicide. Appellant's homicide charge had not yet gone to trial when, on February 25, 1974, appellant was transferred to Somerset County for trial on the instant charges. On this date, appellant entered a plea of guilty.

During the guilty plea colloquy, the court advised appellant of the possible sentence which he might receive, saying, "Now that offense [armed robbery] carries with it a maximum fine of $10,000.00, or imprisonment of not more than twenty years, or both." However, the court did not advise appellant that his sentence in this case might run consecutively with the sentence he was then serving on the federal conviction. Appellant did, in fact, receive a sentence of five to fifteen years to run consecutively with his federal sentence. Appellant took a direct appeal in which he challenged the legality of the sentence but did not raise the issue as to whether or not the guilty plea colloquy was defective. Appellant's sentence was affirmed by this Court. Commonwealth v. Fay, 232 Pa. Superior Ct. 724, 334 A.2d 307 (1975).

Thereafter, appellant, by new counsel, filed the herewithin PCHA petition in which he alleges that his appellate counsel, who was the same attorney who represented appellant at trial, was ineffective for failing to raise the issue regarding the adequacy of the guilty plea colloquy. A hearing was held on this petition and the court found that the guilty plea colloquy was not defective.

[ 294 Pa. Super. Page 335]

Before this Court decides the merits of this petition, we must first address ourselves to the procedural problems which accompany this case. At the time that appellant filed his petition, appellant was incarcerated in federal prison. Section 3 of the Post Conviction Hearing Act stated, then as now, that to be eligible for relief under this legislation, the petitioner must show, inter alia, "that he is incarcerated in the Commonwealth of Pennsylvania under a sentence of death or imprisonment, or on parole or probation." A procedural situation comparable to appellant's was presented to this Court in Commonwealth v. Ditmore, 242 Pa. Superior Ct. 248, 363 A.2d 1253 (1976),*fn2 where a PCHA petitioner was then incarcerated in West Virginia. We held that the petitioner in Ditmore failed to meet the eligibility requirements of section 3. We find the same to be true of appellant's case.

However, this does not leave appellant in limbo, so to speak, until he begins serving his sentence in Pennsylvania. In Commonwealth v. Sheehan, 446 Pa. 35, 285 A.2d 465 (1971), the Supreme Court ruled that a petition which does not meet the eligibility requirements of the PCHA might be treated as a ...


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