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COMMONWEALTH PENNSYLVANIA v. JOHN MCCANDLESS (06/25/82)

filed: June 25, 1982.

COMMONWEALTH OF PENNSYLVANIA,
v.
JOHN MCCANDLESS, APPELLANT



No. 2615 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas, Criminal Division of Montgomery County at No. 417 July 1972.

COUNSEL

Douglas M. Johnson, Norristown, for appellant.

Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Spaeth, Popovich and Montgomery, JJ.

Author: Spaeth

[ 301 Pa. Super. Page 129]

This is an appeal from an order dismissing a P.C.H.A. petition. Appellant claims that he did not knowingly waive his right to appeal the issue of whether his probation revocation hearing was held "as speedily as possible," as required by Pa.R.Crim.P. 1409. We are unable to resolve this claim on the basis of the record before us, and therefore remand.

On November 28, 1972, appellant pleaded guilty to burglary, larceny, and criminal conspiracy, and was sentenced to a total of nine years probation. On April 23, 1973, appellant pleaded guilty to burglary charges, and as a result, on May 4, 1973, he was charged with violating probation and a detainer was lodged against him. A probation violation hearing was scheduled for November 15, 1974, but was not held until December 5, 1974. Appellant's probation was revoked and he was sentenced to three to seven years in prison. Then-counsel for appellant filed an appeal from this sentence, but on November 19, 1975, counsel withdrew the appeal.*fn1

[ 301 Pa. Super. Page 130]

On May 26, 1976, appellant, still by the same counsel, filed a P.C.H.A. petition alleging that the probation violation hearing had not been held "as speedily as possible," as required by Pa.R.Crim.P. 1409. On August 27, 1976, this petition was denied. However, the petition and the order denying it were improperly cross-indexed and therefore not made part of the record. This error was not discovered and corrected until June 11, 1981.

In the meantime, on June 25, 1980, appellant filed pro se a P.C.H.A. petition alleging that his counsel had been ineffective in failing to prosecute the appeal from the judgment of sentence imposed after his probation was revoked. Appellant alleged that he had instructed counsel to file an appeal but "was never informed thereafter about it," and that the issue he had wanted argued on the appeal was whether his probation violation hearing violated Rule 1409. A public defender was appointed to represent appellant, and a hearing was held on the petition. On October 16, 1980, the lower court entered an order denying the petition. This appeal is from that order.*fn2

Anyone convicted of a crime has an absolute right to appeal, Commonwealth v. Wilkerson, 490 Pa. 296, 416 A.2d 477 (1980); Pa. Constitution, Article V, ยง 9, and is entitled to effective assistance of counsel in perfecting an appeal, Commonwealth v. Blackwell, 258 Pa. Superior Ct. 121, 392 A.2d 714 (1978). However, counsel may not be faulted for failing to perfect an appeal where the right to appeal has been waived. Commonwealth v. Robinson, 487 Pa. 541, 410 A.2d 744 (1980). Here the appeal was perfected but withdrawn. The issue, therefore, is whether appellant waived his right to appeal by agreeing to his previous counsel's withdrawal of his appeal.

Previous counsel testified at the P.C.H.A. hearing. His testimony establishes that he had a strategic reason for withdrawing the appeal, but it does not reveal whether this ...


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