Opinion
Submitted November 13, 1967.
January 3, 1968.
Criminal law — Constitutional law — 6th and 14th Amendments — Right to counsel — Counsel on appeal — Waiver of right.
On this appeal from an order dismissing a petition for post-conviction relief without hearing it was Held that (1) the allegations of the petition are sufficient to require a hearing to determine if the defendant was unconstitutionally deprived of the assistance of counsel in perfecting and prosecuting an appeal from the judgment of sentence or whether he waived his constitutional right and (2) the defendant must be provided with the assistance of court-appointed counsel for such hearing.
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. 335, Jan. T., 1967, from order of Court of Oyer and Terminer of Elk County, May T., 1964, No. 81, in case of Commonwealth of Pennsylvania v. Thomas W. Jones. Order vacated.
Proceeding under Post Conviction Hearing Act.
Petition denied. Defendant appealed.
Charles I. Houston, for appellant.
Norbert J. Powell, District Attorney, for Commonwealth, appellee.
This is an appeal from an order below dismissing a petition for post-conviction relief without hearing.
Our examination of the record discloses that the allegations of the petition are sufficient to require a hearing below to determine if the petitioner was unconstitutionally deprived of the assistance of counsel in perfecting and prosecuting an appeal from the judgment of sentence under which he is confined, in violation of Douglas v. California, 372 U.S. 353, 83 S.Ct. 814 (1963). See Commonwealth ex rel. Neal v. Myers, 424 Pa. 576, 227 A.2d 845 (1967); Commonwealth ex rel. Robinson v. Myers, 420 Pa. 72, 215 A.2d 637 (1966); Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1, 213 A.2d 613 (1965).
The record will therefore be remanded for the purpose of an evidentiary hearing and for a determination of whether or not the petitioner intelligently and knowingly waived his right to the assistance of counsel on appeal. For the purposes of this hearing and preparation thereof, petitioner must be provided with the assistance of court-appointed counsel. See Commonwealth v. Richardson, 426 Pa. 419, 233 A.2d 183 (1967).
Order vacated and record remanded.
Mr. Justice COHEN took no part in the consideration or decision of this case.