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submitted: August 3, 1987.


Appeal from the PCHA Order in the Court of Common Pleas of York County, Criminal Division, No. CP# 1376 C.A. 1985.


Charles R. Keeney, in propria persona.

C.N. Patterson, Jr., Assistant District Attorney, York, for Com.

Beck, Tamilia and Popovich, JJ. Beck, J. concurs in the result by Tamilia, J. Popovich, J. files a concurring statement.

Author: Tamilia

[ 367 Pa. Super. Page 18]

Appellant entered a plea of nolo contendere to a charge of criminal attempt to commit homicide in connection with the stabbing of his wife, Sandra Keeney, on June 23, 1985. On March 24, 1986, appellant was sentenced to a term of imprisonment of five (5) to ten (10) years. Appellant failed to file appropriate motions to withdraw or challenge the guilty plea, nor did he file a direct appeal. On November 12, 1986, appellant sought relief by filing a pro se petition under the Post Conviction Hearing Act ("PCHA"), 42 Pa.C.S. ยง 9541 et seq., therein declaring he was indigent and requesting appointment of counsel. On December 18, 1986, the lower court dismissed appellant's petition without appointment of counsel and without an evidentiary hearing. This direct pro se appeal followed. We reverse.

Appellant's sole contention on appeal is that the trial court erred in summarily dismissing his PCHA petition without first appointing counsel to represent him. Pennsylvania Rule of Criminal Procedure 1503(a) provides:

(a) Except as provided in Rule 1504, when an unrepresented petitioner satisfies the court that he is unable to procure counsel, the court shall appoint counsel to represent him. The court, on its own motion, shall appoint counsel to represent a petitioner whenever the interests of justice require it.

Under the rules the only time appointment of counsel is unnecessary in a summary disposition of a PCHA petition appears in Pa.R.Crim.P. 1504 as follows:

Appointment of counsel shall not be necessary and petitions may be disposed of summarily when a previous petition involving the same issue or issues has been finally determined adversely to the petitioner and he either was afforded the opportunity to have counsel appointed or was represented by counsel in proceedings therein.

[ 367 Pa. Super. Page 19]

    there is no underlying constitutional right to appointed counsel in either discretionary appeals or in state post-conviction proceedings. In Finley,*fn1 we concluded the court-appointed trial counsel had violated the PCHA petitioner's constitutional rights by failing to follow the procedures derived from Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), after counsel determined there was no basis for a post-conviction appeal.*fn2 In reversing, the United States Supreme Court found we had acted improperly in relying on the United States Constitution in extending the Anders procedures to post-conviction proceedings. Explaining, the court stated:

We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks to their conviction . . . and we decline to so hold today. Our cases establish that the right to appointed counsel extends to the first appeal of right, and no further. Thus, we have rejected suggestions that we establish a right to counsel on discretionary appeals . . . . We find that since a defendant has no federal constitutional right to counsel when pursuing a discretionary appeal on direct review of his conviction, a fortiori, he has no such right when attacking a conviction that has long since become final upon exhaustion of the appellate process . . . .

[ 367 Pa. Super. Page 21]

    considered to be civil in nature . . . . It is a collateral attack that normally occurs only after the defendant has failed to secure relief through a direct review of his conviction. States have no obligation to provide this avenue of relief . . . and when they do, the fundamental fairness mandated by the Due Process Clause does not require that the State supply a lawyer as well.

Finley, supra at , , 107 S.Ct. at 1993-1994, 95 L.Ed.2d at 545-547.

The court in Finley found that when States, such as Pennsylvania, provide indigent prisoners the right to assistance of counsel in collateral post-conviction proceedings it does not mean that the panoply of procedural protections guaranteed by the United States Constitution for criminal trials and first appeal as of right are required. The Constitution does not require the States to choose between affording no counsel whatsoever or establishing a right to counsel with full procedural protections. Consequently, the Supreme Court's Opinion in Finley does not affect the earlier decision of Commonwealth v. Finley, 497 Pa. 332, 440 A.2d 1183 (1981), rendered by the Pennsylvania Supreme Court, in which it held that indigent petitioners have the right to the assistance of counsel with their first PCHA petition.

Accordingly, we vacate the PCHA court's December 18, 1986 Order and remand the case for a hearing regarding the indigency status of appellant. If appellant is found to be indigent, counsel must be appointed and must have an opportunity to file an amended petition upon request before any summary disposition can be made.

Jurisdiction relinquished.


Jurisdiction relinquished.

[ 367 Pa. Super. Page 22]

POPOVICH, Judge, concurring:

I join the Majority in reversing the Post-Conviction Hearing Act*fn1 court's summary dismissal of the appellant's pro se request for PCHA relief and the appointment of counsel.

I would only add that the Pennsylvania v. Finley, U.S. , 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) case foreclosed a state court from basing the appointment of counsel in collateral proceedings, e.g., under the PCHA, upon the federal Constitution (Amendment VI). This in no way, however, precludes a state's highest court from promulgating Rules of Criminal Procedure (see Pa. Const. Art. V, Sec. 10(c)) affording an indigent with counsel under prescribed circumstances, as is the case in Pennsylvania. See Pa.R.Crim.P. 1503(a).

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