No. 172 Harrisburg, 1981, Appeal from P.C.H.A. Order of the Court of Common Pleas, Criminal Division, of Dauphin County, Nos. 1938, 2554 C.D. 1975; No. 796 C.D. 1976
Robert Niels Tarman, Public Defender, Harrisburg, for appellant.
William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
Wieand, Cirillo and Popovich, JJ. Popovich, J., concurs in the result.
[ 312 Pa. Super. Page 178]
John H. Barton, Jr. was tried by jury and convicted of possession with intent to deliver a controlled substance. Post trial motions were filed and subsequently denied.*fn1 He then entered negotiated pleas of guilty to two additional charges of possession with intent to deliver. On August 18, 1977, while represented by private counsel, he was sentenced on all convictions to three concurrent terms of imprisonment
[ 312 Pa. Super. Page 179]
of not less than 7 1/2 nor more than 15 years. He filed neither motions to modify the sentences nor a direct appeal from any judgment of sentence.
A first P.C.H.A. petition was filed pro se on June 21, 1979. The only request for relief contained in that petition was that he be furnished with a copy of the record of prior proceedings. The Public Defender was appointed to represent appellant and was specifically granted leave to file an amended petition. When no amended petition was filed, the court granted appellant's request for a copy of the record but otherwise dismissed the petition.
On February 4, 1980, a second P.C.H.A. petition was filed in which Barton alleged that he had been denied the right of allocution at the time of sentencing and requested the appointment of counsel. This petition was dismissed without hearing and without the appointment of counsel. Again, no appeal was filed.
A third P.C.H.A. petition was filed on May 1, 1981. In this petition, Barton again alleged that he had been denied the right of allocution at the time of sentencing. The court dismissed the petition without appointing counsel and without a hearing, holding that the issue had been waived. When an appeal was filed from this order, we directed that counsel be appointed, and the court below appointed the Public Defender to provide appellate representation.
Pa.R.Crim.P. 1504, in effect when appellant's P.C.H.A. petitions were filed,*fn2 ...