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COMMONWEALTH PENNSYLVANIA v. GEORGE MARKLEY (08/05/85)

submitted: August 5, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
GEORGE MARKLEY, APPELLANT



No. 301 Pittsburgh, 1985, Appeal from P.C.H.A. Order of the Court of Common Pleas, Criminal Division, of Erie County, Nos. 1208, 1209 and 1210 of 1982.

COUNSEL

Joseph P. Martone, Erie, for appellant.

Michael R. Cauley, Assistant District Attorney, Erie, for Commonwealth, appellee.

Wieand, Popovich and Lipez, JJ.

Author: Wieand

[ 348 Pa. Super. Page 195]

This appeal is from an order dismissing appellant's P.C.H.A. petition on grounds that it became moot after he had

[ 348 Pa. Super. Page 196]

    served the sentence imposed. We conclude that the requested relief is not moot and reverse.

George Markley, represented by an assistant public defender, was tried by jury and found guilty of three counts of theft by deception and one count of issuing a bad check. Post-trial motions were filed, but they were dismissed by the trial court. On March 28, 1983, prior to sentencing, Markley requested that his trial counsel be removed and new counsel appointed. On April 4, 1983, still represented by an assistant public defender, Markley was sentenced to pay a fine of $500.00 and undergo imprisonment for not less than one nor more than two years. Thereafter, the court entered an order removing trial counsel, retroactive to April 4, 1983. The court neglected to appoint new counsel, however, until after the time for appeal had expired.

Five days after the appeal period expired, on May 9, 1983, Markley filed pro se a P.C.H.A. petition in which he alleged, inter alia, that he had been denied his right of appeal and that his trial counsel had rendered ineffective assistance. On May 16, 1983, the trial court signed an order appointing new counsel and allowing an appeal to the Superior Court nunc pro tunc. His P.C.H.A. petition was dismissed because of the anticipated appeal. A direct appeal, however, was never perfected.

Markley was released from prison and was placed on parole on August 31, 1983. He completed his parole on June 22, 1984.

On July 27, 1984, Markley filed an amended P.C.H.A. petition which, inter alia, restated the averments in his first petition that he had been deprived of his right of appeal and had received ineffective assistance from trial ...


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