Commonwealth v. Townes

446 A.2d 1293, 300 Pa. Super. 544, 1982 Pa. Super. LEXIS 4467

Opinion

CERCONE, President Judge:

Appellant, Ronald S. Townes, takes this appeal from the lower court’s dismissal, without a hearing, of appellant’s petition under the Post Conviction Hearing Act (PCHA).

* We find that the court erred in dismissing this petition without first appointing counsel to represent appellant in this matter.

On July 15, 1977, appellant entered a plea of guilty to charges of robbery and criminal conspiracy. At this time appellant was represented by Thomas E. Harting, Esquire, of the Public Defender’s Office of Lancaster County. Subsequently, appellant was sentenced and appellant filed a pro se motion to withdraw his guilty plea. New counsel, Robert Longo, Esquire, was appointed to represent appellant in this matter. Counsel did not file an amended motion on appellant’s behalf but counsel did appear for appellant at the hearing on this motion. The motion was denied, but appellant did not appeal from this ruling.

On March 30, 1979, appellant filed a pro se PCHA petition in which he raised the issue of ineffectiveness of trial counsel. Appellant requested that, an attorney be appointed to represent appellant for this PCHA petition. The court, however, dismissed appellant’s petition without appointing counsel and without a hearing, ruling that all of the issues raised by appellant were previously litigated at the hearing on appellant’s motion to withdraw his guilty plea. Thereafter, appellant filed pro se the instant PCHA petition. In this second petition, appellant raises the issue of ineffective assistance of trial counsel, Mr. Harting, and of Mr. Longo. Appellant states that Mr. Longo’s name remains as counsel of record and therefore appellant claims that counsel was ineffective for failing to appeal from the denial of appellant’s initial PCHA petition. Contained in this second petition was appellant’s request for the appointment of counsel. As before, the court summarily dismissed this petition, without appointment of counsel. This was error.

In Commonwealth v. Watlington, 491 Pa. 241, 420 A.2d 431, 433-434 (1980), the Supreme Court quoted from its earlier opinion in Commonwealth v. Mitchell, 427 Pa. 395, 397, 235 A.2d 148, 149 (1967), in which the court stated:

We pause to note that the mandatory appointment requirement is a salutary one and best comports with efficient judicial administration and serious consideration of a prisoner’s claims. Counsel’s ability to frame the issues in a legally meaningful fashion insures the trial court that all relevant considerations will be brought to its attention. As recognized by the American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Post-Conviction Remedies § 4.4, at 66 (1967): ‘It is a waste of valuable judicial manpower and an inefficient method of seriously treating the substantive merits of applications for post-conviction relief to proceed without counsel for the applicants who have filed pro se.... Exploration of the legal grounds for complaint, investigation of the underlying facts, and more articulate statements of claims are functions of an advocate that are inappropriate for a judge, or his staff.’ (Emphasis added by the Court in Watlington).

See also, Commonwealth v. Sangricco, 490 Pa. 126, 415 A.2d 65 (1980); Commonwealth v. Scott, 469 Pa. 381, 366 A.2d 225 (1975); Commonwealth v. Fiero, 462 Pa. 409, 341 A.2d 448 (1975).

Furthermore, we find that the lower court was in error in its implicit conclusion that all of the issues raised by appellant in this, his second PCHA petition, were either litigated or waived by the disposition of the previous PCHA petition. It is settled law that a theory of waiver or final litigation cannot be predicated upon an uncounseled proceeding. Commonwealth v. Sangricco, supra; Commonwealth v. Fiero, supra; Commonwealth v. Minnick, 436 Pa. 42, 258 A.2d 515 (1969).

Accordingly, appellant’s case must be remanded for appointment of counsel to represent appellant in the presentation of his PCHA petition.

Reversed and remanded for appointment of counsel.

Jurisdiction of this Court is not retained.

The Post Conviction Hearing Act, 1966, Jan. 25, P.L. (1965) 1580, § 5, as amended 1970, Nov. 25, P.L. 759, No. 249, § 1, as amended by Act 1980, June 26, P.L. 265, No. 77, § 2, 19 P.S. §§ 1180-1 et seq. (Supp.1981).