No. 467 Philadelphia, 1981, Appeal from Order in the Court of Common Pleas, Criminal Division, of Lycoming County at Nos. 76-10,586; 779.
David C. Raker, Williamsport, for appellant.
Kenneth Brown, District Attorney, Williamsport, for Commonwealth, appellee.
Cavanaugh, McEwen and Beck, JJ.
[ 301 Pa. Super. Page 437]
This is an appeal from an order entered in the Court of Common Pleas of Lycoming County, denying appellant's petition for post-conviction relief.
Appellant, Robert L. Martin, pleaded guilty to two counts of theft by deception, one count of issuing a bad check, and one count of criminal trespass. On September 20, 1976, appellant was sentenced to one (1) to five (5) years imprisonment on each charge, all to run concurrently. No motion to withdraw the guilty plea was filed and no direct appeal was taken.
On December 4, 1979, appellant filed a petition*fn1 pursuant to the Post-Conviction Hearing Act,*fn2 (PCHA) in which he advanced four grounds*fn3 in support of his prayer for relief: that he had been denied the effective assistance of counsel by counsel's failure to object to the trial court's use of the pre-sentence report containing collateral criminal matters; counsel's failure to request the trial judge to recuse himself due to the prejudice instilled by the defective pre-sentence report; failure to object when the trial court failed to state
[ 301 Pa. Super. Page 438]
his reasons for imposing the sentences; and counsel's failure to properly perfect an appeal of these errors. Counsel was appointed and on April 28, 1980, granted a thirty day extension in which to amend appellant's PCHA petition, as he saw fit, for a hearing scheduled for August 18, 1980.
On August 15, 1980, appellant's counsel filed an amended petition raising twelve new issues.*fn4 At the hearing, the Commonwealth objected to the untimeliness of the amendment, citing Commonwealth v. Nelson, 489 Pa. 491, 414 A.2d 998 (1980). The lower court reserved judgment on the Commonwealth's objection until appellant could file a brief, but received testimony on the merits of the twelve new issues.*fn5 On October 20, 1980, the lower court denied appellant's motion to amend and denied the Commonwealth's motion to take additional testimony. On December 4, 1980, the lower court denied the appellant any relief with the exception of a new sentencing proceeding. On February 2, 1981, the appellant was again sentenced to one (1) to five (5) years imprisonment on these charges and this appeal followed.*fn6
On appeal, appellant has abandoned the issues raised in his original PCHA petition. Though appellant's brief argued the merits of the twelve issues raised in his amended petition, the sole issue to be determined in this appeal is whether the lower ...