Commonwealth v. Hairston

470 A.2d 1004, 323 Pa. Super. 449, 1984 Pa. Super. LEXIS 3844

• Court: Supreme Court of Pennsylvania
• Decided: January 20, 1984
• Docket: 223
• Status: Published

Opinions

JOHNSON, Judge:

Appellant Wade Douglas Hairston appeals the trial court’s summary dismissal of his pro se and supplemental PCHA¹ petitions. We reverse and remand for an evidentiary hearing.

The record indicates that appellant entered guilty pleas to charges of murder,² robbery³ and burglary⁴ on April 19, 1977. Upon accepting the plea, the trial court conducted a degree of guilt hearing concerning the murder plea and found appellant guilty of murder in the second degree. Appellant was immediately sentenced to a term of life imprisonment on the murder charge and ten to twenty years on the robbery and burglary charges, both to run consecutively to the life sentence. No motion to withdraw the guilty plea nor direct appeal was filed. On December 15, 1981, appellant filed his pro se PCHA petition. Following the filing of a supplemental, counseled PCHA petition and answer by the Commonwealth, the trial court denied the petitions on June 16, 1982 without a hearing. That order stated:

OPINION AND ORDER

The Court adopts the Commonwealth’s Answer as completely, accurately and authoritatively disposing of all issues raised.

Accordingly, defendant’s Supplemental Petition under the Post Conviction Hearing Act is denied without a hearing.

Appellant filed his notice of appeal on June 22, 1982. Subsequently, on July 1, 1982, the trial court issued a second order reaffirming its June 16th order dismissing appellant’s petition without a hearing but also vacating appellant’s sentence for robbery.⁵

However, because notice of appeal had already been filed at the time of this second order, it was a nullity. Pa.R.A.P. 1701; 42 Pa.C.S.A. § 5505; Commonwealth v. Lynch, 304 Pa.Super. 248, 450 A.2d 664 (1982). We do note' that the trial court’s conclusion is correct; the robbery sentence merged into the murder conviction. Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981).

Appellant raises several issues on this appeal: (1) was his guilty plea entered knowingly, voluntarily and intelligently, (2) should he be permitted to file a motion to withdraw his guilty pleas nunc pro tunc and (3) should the robbery sentence be vacated.

Various substantive issues are raised pursuant to the first issue, which we need not now discuss, as appellant has alleged that he was not informed of the 30 day time period in which to file a direct appeal. Our review of the guilty plea colloquy confirms that the trial court did not inform appellant of this time period. The law is clear that unless a court is absolutely certain of patent frivolousness of the issues in a PCHA petition, it must grant a hearing; in borderline cases, the petitioner should be given every conceivable legitimate benefit in favor of granting the hearing. Commonwealth v. Gray, 317 Pa.Super. 248, 463 A.2d 1179 (1983).

The trial court admits, in its opinion, that appellant was not informed of the 30 day direct appeal period, but denies relief, inter alia, on the basis of appellant’s four and-one-half year delay in filing his PCHA petition. However, we note that appellant implicitly has explained the delay in filing his petition and his reasons for not filing a direct appeal; that he was not informed of the time period in which to do so. Therefore, appellant’s PCHA petition cannot be dismissed as untimely, as he has alleged the deprivation of his appellate rights. See Commonwealth v. Kale, 312 Pa.Super. 69, 458 A.2d 239 (1983); Commonwealth v. Wallace, 229 Pa.Super. 172, 323 A.2d 182 (1974).

There is also no waiver under the provisions of the PCHA where the petitioner proves the existence of “extraordinary circumstances” justifying his failure to raise the issue on direct appeal 19 P.S. § 1180-4(b)(2). A denial of appellate rights is such an extraordinary circumstance. Commonwealth v. Jones, 477 Pa. 266, 383 A.2d 926 (1978).

We note that a determination of whether a defendant’s guilty plea was knowing and voluntary is a factual matter to be resolved by the trial court. Commonwealth v. Lowery, 438 Pa. 89, 263 A.2d 332 (1970); Commonwealth v. Gray, supra. We must, therefore, remand this matter for an evidentiary hearing on all of appellant’s claims properly raised in his PCHA petitions. Commonwealth v. Lowery, supra.

The orders dated June 16, and July 1, 1982 are vacated and the case remanded for (1) an evidentiary hearing on appellant’s PCHA petition and (2) vacation of appellant’s sentence for robbery.

Jurisdiction is not retained.

WIEAND, J., concurs in the result. CIRILLO, J., files a dissenting opinion.

1 . Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq., repealed and reenacted by Act of May 13, 1982, P.L. 417, No. 122, §§ 2, 3, immediately effective, 42 Pa.C.S.A. § 9541 et seq.

2 . 18 Pa.C.S.A. § 2502.

3 . Id. § 3701.

4 . Id. § 3502.

5 . The Commonwealth’s Answer to appellant’s Petition, filed April 29, 1982, stated that "the robbery sentence must merge with the murder sentence.” The July, 1 order was therefore apparently in clarification of the court’s prior order adopting the Commonwealth’s Answer.