Opinion
Submitted September 25, 1967.
November 14, 1967.
Criminal law — Post-conviction hearing — Petition — Request for counsel — Post Conviction Hearing Act.
In a petition filed under the Post Conviction Hearing Act of 1966, P. L. (1965) 1580, in which petitioner requests counsel and alleges that he is without means to procure counsel, the court must act in accordance with § 12 of the Act which provides "If appointment of counsel is so requested, the court shall appoint counsel if satisfied that the petitioner has no means to procure counsel."
Mr. Justice COHEN took no part in the consideration or decision of this case.
Before BELL, C. J., MUSMANNO, JONES, EAGEN, O'BRIEN and ROBERTS, JJ.
Appeal, No. 212, March T., 1967, from order of Court of Oyer and Terminer of Fayette County, Dec. T., 1964, No. 20/61, in case of Commonwealth of Pennsylvania v. Ralph Russell Hughes. Order vacated.
Proceeding under Post Conviction Hearing Act.
Petition dismissed. Defendant appealed.
Ralph Russell Hughes, appellant, in propria persona.
Thomas P. Ruane, Jr., First Assistant District Attorney, and John R. Hoye, District Attorney, for Commonwealth, appellee.
Ralph Russell Hughes was sentenced to life imprisonment in 1966 after a plea of guilty to murder. Apparently no appeal was taken. On September 28, 1966 the Fayette County Court denied without appointment of counsel a petition brought under the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, 19 P. S. § 1180-1 et seq. (Supp. 1966). A second petition, also under the Post Conviction Hearing Act, was denied on July 11, 1967. Hughes asserted that he was without funds and requested the trial court to appoint counsel; he apparently was indigent for the court below did permit Hughes to proceed "as a poor person." An in forma pauperis appeal was taken to this Court from the denial of Hughes' second petition.
Section 12 of the Post Conviction Hearing Act imposes a mandatory requirement upon the trial court to appoint counsel for the prosecution of an indigent's post-conviction petition; since Hughes did not have counsel in either petition, we must vacate the order below and remand the record for appointment of counsel without reaching the merits of Hughes' contentions. See Commonwealth v. Mitchell, 427 Pa. 395, 235 A.2d 148 (1967); Commonwealth v. Richardson, 426 Pa. 419, 233 A.2d 183 (1967); Commonwealth v. Hoffman, 426 Pa. 226, 232 A.2d 623 (1967).
The order of the Court of Oyer and Terminer of Fayette County is vacated and the record remanded to that court with instructions to appoint counsel to represent Ralph Russell Hughes in a post-conviction proceeding at which his eligibility for an evidentiary hearing and/or other relief may be determined.
Mr. Justice COHEN took no part in the consideration or decision of this case.