Appeal from the Post Conv. Relief Act docketed January 24, 1989 in the Court of Common Pleas of Allegheny County, Criminal Division, at No. 8510865/8511995.
John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
Del Sole, Montemuro and Popovich, JJ.
[ 389 Pa. Super. Page 210]
William Butler, appellant, pleaded guilty to burglary, possession of instruments of crime and retail theft. No appeal was filed after his conviction. Almost a year later, Butler filed a pro se petition for post-conviction relief. After counsel was appointed, an amended petition was filed. Butler's post-conviction petitions were dismissed without a hearing and this appeal followed. Butler raises two issues on appeal which have merit. We reverse the order of the P.C.R.A. court and discharge the appellant.
[ 389 Pa. Super. Page 211]
On October 5, 1985, Butler was charged with retail theft in Allegheny County. On October 20, 1985, he was charged with burglary and possession of instruments of crime. Butler did not appear for a preliminary hearing on the charges of burglary and possession of instruments of crime, and he failed to appear for a formal arraignment on the charge of retail theft. As a result, Butler's bond was forfeited and a bench warrant was issued for his arrest.
On June 10, 1986, the Pennsylvania Board of Probation and Parole discovered that Butler was detained by officials in South Carolina. Following disposition of criminal proceedings in South Carolina, an extradition hearing was conducted in South Carolina on September 9, 1986. As a result of that hearing, Butler was transported back to Pennsylvania on December 8, 1986.
On April 15, 1987, in response to Butler's motion to dismiss under Rule 1100, the trial court dismissed the retail theft, burglary and possessing the instruments of crime charges. The Commonwealth filed a Motion for Reconsideration on April 16, 1987 which was granted by the trial court on May 20, 1987.
The two issues raised by Butler are centered on this grant of reconsideration. Butler argues that on May 20, 1987, the trial court no longer had jurisdiction to grant a reconsideration motion and Butler's counsel was ineffective for not objecting to the trial court's jurisdiction at trial or on appeal. We agree.
Pennsylvania has adopted the U.S. Supreme Court's standard of determining ineffective assistance of counsel. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the U.S. Supreme Court announced a two-prong test for ineffectiveness claims: "First, the defendant must show that counsel's performance was deficient . . . . [and] . . . [s]econd, the defendant must show that the deficient performance prejudiced that defense." ...