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COMMONWEALTH PENNSYLVANIA v. MITCHELL SHABLIN (01/26/87)

submitted: January 26, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
MITCHELL SHABLIN, APPELLANT



Appeal from the Judgment of Sentence of July 2, 1986 in the Court of Common Pleas of Montgomery County, Criminal Division, at Nos. 4074-85, 4074.1-85, 4074.2-85, 4074.6-85.

COUNSEL

Douglas M. Johnson, Assistant Public Defender, Collegeville, for appellant.

Mary M. Killinger, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Beck, Kelly and Hoffman, JJ.

Author: Hoffman

[ 362 Pa. Super. Page 291]

This is an appeal from the judgment of sentence for burglary, attempted rape and unlawful restraint. Appellant contends that his trial counsel was ineffective for failing to object when the trial court did not conduct a colloquy before accepting his waiver of a jury trial. Because we find that appellant's claim has arguable merit, we vacate the judgment of sentence and remand the case for a hearing to determine whether appellant's waiver was voluntarily entered.

Appellant was arrested and charged with the above crimes. He filed a pre-trial motion to suppress out-of-court and in-court identifications. After a hearing, the trial court denied the motion. The trial court, without the colloquy required by Pa.R.Crim.P. 1101, accepted appellant's waiver

[ 362 Pa. Super. Page 292]

    of his right to a trial by jury. After a bench trial, appellant was convicted of all charges and sentenced to three-and-one-half-to-seven years incarceration for the attempted rape conviction and a consecutive term of one-to-two years incarceration for the burglary conviction. Sentence was suspended on the remaining conviction. This appeal followed.

Appellant contends that his trial counsel was ineffective for failing to object when the trial court accepted his waiver of his right to a jury trial without first conducting a colloquy as required by Pa.R.Crim.P. 1101. We agree.*fn1

When confronted with a claim of ineffective assistance of counsel, a reviewing court must first ascertain whether the issue underlying the charge of ineffectiveness is of arguable merit, and, if so, it must determine whether the course chosen by counsel had some reasonable basis designed to serve the interests of the client.

Commonwealth v. Buehl, 510 Pa. 363, 378, 508 A.2d 1167, 1174 (1986). Further, to obtain relief, appellant must show that counsel's ineffectiveness worked to his prejudice. Id. (citing Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 605 n. 8, 235 A.2d 349, 353 n. 8 (1967)). When a claim has arguable merit, and there has been no evidentiary hearing below to determine if there was a reasonable basis for counsel's actions, then this Court will remand for an evidentiary hearing. Commonwealth v. Spotts, 341 Pa. Superior Ct. 31, 33, 491 A.2d 132, 134 (1985). If it is clear that the allegation of ineffectiveness of counsel lacks arguable merit, then an evidentiary hearing is unwarranted and the unfounded allegation will be rejected. Commonwealth v. Clemmons, 505 Pa. 356, 361, 479 A.2d 955, 957 (1984).

The right to trial by jury in non-petty criminal cases is a basic tenet of American jurisprudence. U.S. Const. amend. VI; Pa. Const. art. I, ยงยง 6, 9; Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 ...


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