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COMMONWEALTH PENNSYLVANIA v. GEORGE WARING (04/27/87)

submitted: April 27, 1987.

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



Appeal from the PCHA November 5, 1986, in the Court of Common Pleas of Philadelphia County, Criminal No. 763, 770 and 771 Nov. Term 1980.

COUNSEL

Abraham Leizerowski, Philadelphia, for appellant.

Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.

Wieand, Olszewski and Hoffman, JJ.

Author: Olszewski

[ 366 Pa. Super. Page 145]

This is an appeal from the trial court's order denying appellant's petition for relief under the Post Conviction Hearing Act (PCHA).*fn1 Appellant argues in this appeal that his trial counsel was ineffective by failing to file a timely direct appeal to this Court.*fn2 For the reasons stated below, the trial court order is vacated and the case remanded for an evidentiary hearing.

Appellant pleaded guilty to conspiracy, burglary, and robbery. On February 14, 1983, the trial court sentenced appellant to ten to twenty years on the burglary charge, ten to twenty years on the robbery charge, and five to ten years on the conspiracy charge. The robbery and conspiracy sentences were to be served concurrently with appellant's burglary sentence. Appellant filed a petition for reconsideration of sentence which the trial court subsequently denied. Appellant did not file a motion to withdraw his guilty plea. On April 25, 1983, appellant filed an appeal to this Court which was quashed as untimely. Subsequently, appellant filed a PCHA petition which the trial court denied without a hearing. This timely appeal followed.

Appellant argues that his trial counsel was ineffective for failing to file a timely direct appeal from his judgment of sentence. In Commonwealth v. Dockins, 324 Pa. Super. 305, 471 A.2d 851 (1984), this Court stated:

Under most circumstances, counsel cannot be deemed ineffective for failing to raise an issue unless the issue is

[ 366 Pa. Super. Page 146]

    meritorious. Nevertheless, it is trial counsel's duty to perfect a defendant's appeal once requested to do so, even if counsel believes that appellant's appeal would be without merit. Commonwealth v. Cooley, 298 Pa. Super. 163, 444 A.2d 711 (1982).*fn3

Id., 324 Pa. Superior Ct. at 310-11, 471 A.2d at 854 (emphasis in original) (footnote added). In Commonwealth v. Berthesi, 350 Pa. Super. 383, 504 A.2d 891 (1986), this Court further explained that:

It is axiomatic that in our scheme of justice an accused has the right to appeal his sentence [an accused has an absolute right to appeal pursuant to the Pennsylvania Constitution, Art. V, Sec. 9] and to the assistance of appointed counsel, if indigent, in doing so, Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). Concomitantly, the accused has the ability to "waive" his right to counsel and ...


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