No. 935 Pittsburgh, 1980, Appeal from Order of the Court of Common Pleas, Criminal Division, of Erie County, No. 570 of 1977
Carmela Presogna, Erie, for appellant.
Shad Connelly, Assistant District Attorney, Erie, for Commonwealth, appellee.
Wickersham, Wieand and Beck, JJ.
[ 304 Pa. Super. Page 507]
Joseph Ollie, convicted and sentenced to prison for rape, has twice been denied hearings on post-conviction petitions. He contends that he has been denied hearings because of the ineffectiveness of counsel. A review of the record compels the conclusion that Ollie is correct and that his present appeal must be sustained.
Appellant was convicted of rape, statutory rape, and indecent assault on June 22, 1977. Following the denial of boiler-plate post-trial motions, he was sentenced to 9 1/2 to 20 years in prison. No direct appeal was taken. On November 13, 1979, appellant filed pro se a P.C.H.A. petition containing averments that trial counsel had been ineffective for failing to file a pre-trial suppression motion, for failing to investigate adequately or consult with the appellant, and for failing "to challenge creditbality [sic] of alledged [sic] victim." His petition averred that these issues had not been waived or finally litigated because he had not been allowed to utilize or exhaust his full range of appellate rights. Although counsel was appointed to assist appellant, no amended petition was filed, no extension of time was sought, and no brief was prepared. Oral argument was apparently held on the petition, and appellant's P.C.H.A. petition was dismissed without hearing. No appeal was filed.
[ 304 Pa. Super. Page 508]
On July 7, 1980, appellant filed a "petition for allowance of appeal nunc pro tunc."*fn1 The petition alleged that appellant had requested his attorney to appeal his conviction, but that the attorney had failed to do so. Appellant alleged further that despite a specific request to do so, P.C.H.A. counsel had also refused or neglected to file an appeal from the order denying his P.C.H.A. petition without hearing. For these reasons, he contended in the petition of July 7, 1980, his right of appellate review had been denied. Appointed counsel entered an appearance for appellant on August 12, 1980. The next day, there having been no request by counsel for leave to file an amended petition, appellant's second petition was also denied without hearing. This time an appeal was filed.
Appellant argues that the issues he has wanted to raise were not waived, that he has been denied effective assistance of counsel, and that his appellate rights have been denied. We agree that he is entitled to relief. The courts in this Commonwealth have repeatedly held that the mandatory appointment of counsel requirement of the Post Conviction Hearing Act*fn2 "is not limited to the mere naming of an attorney to represent an accused, but also envisions that counsel so appointed shall have the opportunity and in fact discharge the responsibilities required by his representation." Commonwealth v. Carrier, 494 Pa. 305, 309, 431 A.2d 271, 273 (1981), quoting Commonwealth v. Fiero, 462 Pa. 409, 413, 341 A.2d 448, 450 (1975). See also: Commonwealth v. Scott, 469 Pa. 381, 383, 366 A.2d 225, 226 (1976); Commonwealth v. Hines, 287 Pa. Super. 291, 295, 430 A.2d 291, 292 (1981); Commonwealth v. Zaborowski, 283 Pa. Super. 132, 135, 423 A.2d 1023, 1025 (1980). When appointed counsel fails to amend an inarticulately drafted pro se P.C.H.A. petition, or fails otherwise to participate meaningfully, this
[ 304 Pa. Super. Page 509]
court will "conclude that the proceedings were, for all practical purposes, uncounselled and in violation of the representation requirement of the PCHA. Commonwealth v. Sangricco, 490 Pa. 126, 415 A.2d 65 (1980)." Commonwealth v. Carrier, supra, 494 Pa. at 310, 431 A.2d at 274.
In cases where a trial court's decision to dismiss a pro se petition has been made without the benefit of effective counsel, the Supreme Court and this Court have uniformly remanded to afford appellant an opportunity to be represented in a meaningful way by counsel. See, e.g., Commonwealth v. Carrier, supra; Commonwealth v. Watlington, 491 Pa. 241, 420 A.2d 431 (1980); Commonwealth v. Sangricco, supra; Commonwealth v. ...