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COMMONWEALTH PENNSYLVANIA v. DONALD HARRIS (01/20/89)

filed: January 20, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
DONALD HARRIS, APPELLANT



Appeal from the PCHA of December 5, 1986 in the Court of Common Pleas of Philadelphia County, Criminal Division, No. 84-09-2252/55.

COUNSEL

Mitchell S. Strutin, Philadelphia, for appellant.

Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.

Brosky, Kelly and Watkins, JJ. Brosky, J., files a concurring opinion.

Author: Kelly

[ 381 Pa. Super. Page 207]

Counsel appointed to represent appellant, Donald Harris, on appeal from an order denying appellant's petition for post-conviction relief, has filed what purports to be an

[ 381 Pa. Super. Page 208]

On May 21, 1985, appellant filed a pro se motion seeking a copy of the transcripts of the prior proceedings. On July 10, 1985, appellant filed a pro se petition under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S.A. ยง 9541 et seq. Appellant alleged that prior counsel had indicated that if appellant pled guilty, counsel could get appellant a maximum sentence of three years, but if appellant refused to plead guilty, counsel would see to it that appellant received the maximum sentence possible. (PCHA Petition 7/10/85 at 3). On September 11, 1985, however, appellant filed a pro se petition to withdraw his PCHA petition. No reason was given for the withdrawal request.

On September 24, 1985, appellant filed a second pro se PCHA petition. Appellant again sought relief based upon a somewhat embellished allegation which follows verbatim:

I am only (19) yrs. old, at the time of enterting the guilty plea, my Attorney, . . ., only told me that if I went to trial, upon conviction the State would impose a sent. of (20) yrs. upon me; but if I pleaded guilty, he would get me two to three yrs. He didn't inform me that by pleaing guilty, I would waive my Const. righ right, to trial by jury, or the Judge if I chosed. I was'nt aware that any waiver of Const. rights, must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder; possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. In the absent of the following my gulity is invaild, and Counsel, was ineffective, for directing me to plea upon fale false promies. which I did'nt receive.

(PCHA Petition 9/24/85 at 3). The petition was accompanied by a three page typewritten pro se memorandum of law in support of the petition. Appellant indicated that he was without financial resources and requested that the trial court appoint counsel to assist him. (PCHA Petition 9/24/85 at 5-6).

[ 381 Pa. Super. Page 210]

From here the record contains gaps, ambiguities, and apparent contradictions. The portion of the PCHA petition relating to authorization for appointment of counsel is unexecuted and no order appointing counsel is entered on the docket certified to this Court. Nonetheless, beginning January 14, 1986, the trial court's status listings indicate that counsel had been appointed to represent appellant. The status listing for September 18, 1986, indicates that PCHA counsel had received the transcripts of the prior proceedings. On November 13, 1986, the status listing notes, "Possible Finley."*fn1 On December 1, 1986, the status listing notes, "'Finley' disp. Atty. to supplement letter." On December 5, 1986, the final status listing states, "'Finley' Dispo. PCHA Petition is hereby denied." No "Finley" letter or supplement appears in the record certified to this Court. There is no indication in the record that PCHA counsel ever spoke with appellant concerning the petition.

On December 5, 1986, an order was entered denying appellant's unamended pro se PCHA petition. On December 16, 1986, PCHA counsel filed notice of appeal to this Court on behalf of appellant. On December 15, 1986, PCHA counsel filed a "Verified Statement" that on July 26, 1985*fn2 he had been appointed to represent appellant and that appellant's pauper status had not substantially changed since that date. On January 7, 1986, PCHA counsel was permitted to withdraw as counsel for appellant.

On January 13, 1987, new counsel was appointed to represent appellant in his appeal to this Court. He has filed what purports to be an " Anders Brief" and seeks permission to withdraw as counsel. Counsel's Statement of the Case is as follows:

The appellant was arrested and charged in Bills of Information nos. 2252-2255 September Term, 1984 with rape,

[ 381 Pa. Super. Page 211]

    aggravated assault and related offenses. On November 21, 1984, the appellant entered a guilty plea to all charges before the Honorable Thomas Shiomos. On January 31, 1985, the appellant was sentenced to concurrent five to ten year terms for rape (Bill no. 2254) and aggravated assault (Bill no. 2252).

Following sentencing, the appellant did not file a motion to withdraw his guilty plea, a motion to modify sentence or an appeal to this Court. The appellant filed a petition under the Post Conviction Hearing Act contending that his guilty plea was involuntary. The lower court appointed counsel to represent the appellant.

By Order dated December 5, 1986, the lower court denied the appellant relief under the Post Conviction Hearing Act. Prior counsel was permitted to withdraw following the filing of a notice of appeal to this Court. Present counsel was then appointed for purposes of this appeal.

(Anders Brief at 4). The Summary of Argument is, "[a]fter a complete and careful review of the entire record in this matter it is clear that there are no meritorious issues presented and that this appeal is wholly frivolous." The Argument section states:

Appellate counsel has made a complete and careful review of the record in this matter concerning the appellant's entry of a guilty plea to rape, aggravated assault and related offenses. During this review, appellate counsel was mindful of the following issues which might arguably support this appeal:

1. the legality of the sentence.

2. the excessiveness of the ...


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