No. 407 October Term, 1979, Appeal from the Order of the Court of Common Pleas, Criminal Division, Berks County, at Nos. 76-068101 and 76-068101-A.
Lawrence J. Hracho, Reading, for appellant.
Charles M. Gruthrie, Jr., Assistant District Attorney, Reading, for Commonwealth, appellee.
Cercone, President Judge, and Price, Spaeth, Hester, Cavanaugh, Wickersham and Brosky, JJ.
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Appellant, William Miranda, was convicted of one count of attempted murder,*fn1 two counts of aggravated assault,*fn2 and two counts of recklessly endangering another person.*fn3 Post-trial motions were filed and dismissed. Appellant was then sentenced to serve concurrent terms of imprisonment of five to ten years, two to five years and one to three years, respectively. No petition to reconsider the sentence was filed and no direct appeal was perfected. Appellant's trial counsel subsequently petitioned the Superior Court for permission to file an appeal nunc pro tunc ; we denied this petition. Appellant then filed a petition under the Post-Conviction
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Hearing Act*fn4 (hereinafter PCHA) alleging inter alia the ineffectiveness of trial counsel for failing to take a direct appeal. The PCHA court reviewed the ineffectiveness claim and granted appellant the right to file an appeal nunc pro tunc. The court, however, did not address the other issues alleged in the PCHA petition. The nunc pro tunc appeal to this Court was filed, and we ordered the case listed for reargument before the en banc court and requested that the parties give primary emphasis in their briefs to the question concerning the scope of review permitted a post conviction hearing court when it determines that the PCHA petitioner has been denied his appellate rights. The central point of contention to be examined is whether the PCHA court is precluded from reaching the merits of other issues raised in the PCHA petition once that court determines that petitioner has been deprived of his direct appeal rights and grants an appeal nunc pro tunc. In accordance with our directive, both appellant and appellee have fully briefed this issue. In this case appellant presents three other claims in addition to the deprivation of appellate rights claim, (1) whether the pre-trial hearing court erred in dismissing appellant's Rule 1100 application, (2) whether the sentences imposed were illegal insofar as the sentences merged, and (3) whether the sentencing court complied with the provisions of Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). All issues presently raised by appellant were properly preserved by specific post-trial motions below.
I. The " Nunc Pro Tunc Problem."
The problem, then, is to decide what substantive and procedural limitations a PCHA court has when it decides that the PCHA petitioner was denied his appellate rights and thus grants the nunc pro tunc appeal.
A. Discussion of the Problem.
In general, the Post Conviction Hearing Act 19 P.S. § 1180-1 et seq. provides the criminal defendant with the
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opportunity for collateral relief. Section 2 of the Act clearly sets forth its intended purpose:
This act establishes a post-conviction procedure for providing relief from convictions obtained and sentences imposed without due process of law. The procedure hereby established shall encompass all common law and statutory procedures for the same purpose that exist when this statute takes effect, including habeas corpus and coram nobis. However, nothing in this act limits the availability of remedies in the trial court or on direct appeal.
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Where the petitioner's claims are patently frivolous and are without a trace of support either in the record or from other evidence submitted by petitioner, the PCHA court may dismiss the petition without a hearing. Moreover, even where petitioner alleges facts that, if proven, would entitle him to relief, the petition may still be dismissed if the issue(s) presented could have been raised previously, and petitioner does not allege extraordinary circumstances justifying his failure to do so. Commonwealth v. Porter, 256 Pa. Superior Ct. 163, 166, 389 A.2d 651, 653 (1978). Instantly, we are concerned with the situation where the PCHA petitioner alleges in his petition not only the deprivation of his appellate rights but also several other claims specifically permitted by Section 1180-3 of the Act. Usually, the deprivation of rights claim is premised upon counsel's ineffectiveness either for having failed to take an appeal, despite petitioner's request to do so, or for having failed to pursue on appeal an allegedly meritorious claim. See, e.g., Commonwealth v. James, 484 Pa. 180, 398 A.2d 1003 (1979); Commonwealth v. Westbrook, 484 Pa. 534, 400 A.2d 160 (1979); Commonwealth v. Dixon, 475 Pa. 365, 380 A.2d 765 (1977); Commonwealth v. Fauntroy, 475 Pa. 287, 380 A.2d 357 (1977). In addition to premising the claim upon ineffectiveness, the PCHA petitioner can assert denial of his appellate rights as they have been defined by Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1967).*fn5 See, Page 448} e.g., Commonwealth v. Morris, 486 Pa. 391, 406 A.2d 337 (1979) (where petitioner has not been fully apprised of his appellate rights, the proper remedy is the nunc pro tunc filing of post-trial motions).*fn6
The presence of this deprivation of appellate rights claim in the PCHA petition has puzzled the PCHA courts insofar as the proper procedure to be employed in disposing of the petition. The questions facing the PCHA court appear to be (1) whether the court is to review the claim asserting denial of appellate rights, and if meritorious, grant petitioner the right to appeal nunc pro tunc, leaving all other claims asserted in the petition open, or (2) whether the court is to do more than merely find a deprivation of appellate rights; in other words, what is PCHA court to do with respect to other issues raised. There is no consistent pattern followed by PCHA courts in this matter. In some instances, the court will review the deprivation of appellate rights claim, grant the nunc pro tunc appeal and then, as if conducting an independent hearing, it will go on to review and deny the other claims asserted in the PCHA petition. Under these circumstances two appeals result: the petitioner files a nunc pro tunc appeal on the deprivation of appeal rights claim and also an appeal from the order of the PCHA court's denial of other relief requested. Other times, the PCHA court, reading the case of Commonwealth v. Webster, 466 Pa. 314, 317-18, 353 A.2d 372, 373 (1976), will first review
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the deprivation of appellate rights claim, decide the issue in petitioner's favor and grant the nunc pro tunc appeal without considering the other issues raised in the petition. Here, although a single appeal results, that is the nunc pro tunc appeal, we are usually presented with an incomplete record on the additional issues raised. Finally, the PCHA court may review and deny all claims asserted in the PCHA petition, whereupon petitioner would file a single appeal from the order denying relief. Because of the various procedures followed in the courts below, we experience too many instances where unnecessary duplication of appeals find their way to the appellate court, ...