No. 256 Pittsburgh 1982, Appeal from the Order in the Court of Common Pleas, Criminal Division, of Clearfield County at Nos. 617, 692, 813, 814, & 815-1974 CRA.
Harry Phillips, in propria persona.
Thomas F. Morgan, Dist. Atty., Clearfield, for Commonwealth, appellee.
Wickersham, Rowley and Popovich, JJ.
[ 335 Pa. Super. Page 70]
A warrant of arrest was issued against appellant, Harry Phillips, on charges of Burglary, Theft by Unlawful Taking and Receiving Stolen Property. Phillips was held in the Clearfield County Jail pending trial and he escaped from the County Jail and was arrested on September 9, 1974 on a charge of escape. He waived indictment by the Grand Jury and was once again placed in the Clearfield County Jail to await trial. On October 3, 1974, the Appellant, represented by counsel, Barry P. Tumpson, Esquire, entered a plea of guilty to the Burglary and Escape charges in accord with a negotiated plea agreement. Sentencing was scheduled on October 30, 1974, at which time Phillips, through his counsel, requested that the pleas of guilty be withdrawn. The request was granted, and the Appellant was held pending the next term of criminal court. Subsequent to the entry of
[ 335 Pa. Super. Page 71]
his plea of guilty on October 3, 1974, Phillips was arrested on additional charges of Burglary, Theft by Unlawful Taking and Receiving Stolen Property. Appellant entered into a negotiated plea agreement with regard to all of the above charges and was sentenced on December 10, 1974. The terms of the plea bargain and sentence were that Appellant would receive a term of incarceration of 3 1/2 to 7 years on the Escape charge, 1 to 2 years on each of the Burglary charges and 6 to 12 months on the Criminal Trespass charge. All sentences to be served concurrently. Phillips on June 2, 1975 then filed a petition seeking reconsideration of the sentences which had been imposed. Following hearing held July 11, 1975, the Court denied the requested reconsideration by Order dated October 14, 1975. Appellant on November 19, 1975 filed a petition seeking relief under the Post Conviction Hearing Act.*fn1 John Sughrue, Esquire, Public Defender, was appointed to represent the Appellant, and a hearing was held on January 21, 1976. By Order of Court dated January 22, 1976, the petition was denied and Appellant filed an appeal. In Commonwealth v. Phillips, 248 Pa. Super. 400, 375 A.2d 158 (1977) we affirmed the Order of the lower court.
On January 9, 1981, Phillips filed a second petition seeking relief under the Post Conviction Hearing Act. The Court of Common Pleas of Clearfield County by Order dated January 25, 1982 denied the relief requested without a hearing, and this appeal was taken.
Appellant states the first issue as follows:
1. Whether appellant's post conviction hearing act petition was properly denied without hearing and appointment of counsel?
Brief for Appellant at 2.
We agree with appellant that his petition was improperly denied; therefore, we will reverse and remand ...