January 18, 1985
COMMONWEALTH OF PENNSYLVANIA
ROBERT THOMAS, APPELLANT
No. 428 Harrisburg, 1982, Appeal from the PCHA of November 15, 1982 in the Court of Common Pleas of Dauphin County, Criminal Division, No. 2143 CD 1973
Before Spaeth, P.j., Cirillo and Cercone, JJ. Cirillo, J. files a Dissenting Memorandum.
Order of lower court reversed. Case remanded for hearing on appellant's petition and for appointment of counsel. Jurisdiction is relinquished.
CIRILLO, J. files a Dissenting Memorandum.
I respectfully dissent. I cannot agree with the holding of the majority that appellant is entitled to a hearing on his PCHA petition. Following his sentencing, appellant was advised that only issues raised in post-verdict motions could be raised on appeal and that such motions should be filed within 10 days. He ws also advised of his right to counsel. Instead of electing to be represented by counsel, appellant filed a pro se PCHA petition which was denied because of its untimeliness. Appellant then filed a petition to file an appeal nunc pro tunc which was also denied. Eight years later appellant filed another pro se PCHA petition; ignoring the lesson learned from his first attempt at seeking relief.
As the majority notes, the fact of a delay is not itself the necessary and sufficient condition upon which a denial of a hearing can be predicated. However, "a waiver of appellate rights is effective where a defendant is aware of the right to an appeal and the right of assistance of free counsel if he cannot afford his own attorney." Commonwealth v. Barton, Pa. Super. , , 458 A.2d 571, 574 (1983).
There is no absolute right to a hearing under the PCHA Act. Commonwealth v. Miller, 275 Pa. Super. 236, 418 A.2d 700 (1980); Commonwealth v. Overall, 275 Pa. Super. 236, 418 A.2d 685 (1980). It is within the discretion of the trial court to make a determination as to the appropriateness of granting a hearing. Commonwealth v. Bennett, 472 Pa. 314, 372 A.2d 713 (1977). Moreover, there is a waiver principle set within the parameters of the PCHA Act itself.
(b) For the purposes of this act, an issue is waived if:
(1) The petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding actually initiated under this act; and
(2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.
(c) There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.
19 P.S. § 1180-4(b), (c) (emphasis added).
Appellant alleges counsel's ineffectiveness for failure to pursue these issues as the extraordinary circumstance entitling him to relief, thereby dispelling the finding of waiver. 42 Pa. C.S. §§ 9543 (4), 9544(b). Claims of ineffective assistance of counsel without facts that would entitle petitioner to relief, coupled with the absence of any explanation for the delay, should not entitle appellant to a hearing.
I would affirm.
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