Opinion
March 19, 1973.
June 14, 1973.
Criminal Law — Practice — PCHA petition — Second petition raising claim presented in first petition — Failure to appeal denial of first petition because of alleged misunderstanding of counsel — Affirmance of denial of second petition without prejudice to petitioner's right to file a request with the lower court for leave to appeal nunc pro tunc from denial of first petition.
In this PCHA proceeding, in which it appeared that petitioner raised the same issue which he had raised in a prior petition, that is, that his guilty plea should not have been accepted because facts adduced at the hearing indicated that he had a defense to the charge; that petitioner presented this claim in his first PCHA petition, but the hearing judge denied relief; and that petitioner contended that he had intended to appeal the denial but that as a result of a misunderstanding with counsel an appeal was never taken; it was Held that the decision of the lower court denying petitioner's second petition should be affirmed without prejudice, however, to petitioner's right to file a request with the lower court for leave to file an appeal nunc pro tunc from the denial of the first petition.
Before WRIGHT, P.J., WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE, and SPAETH, JJ.
Appeal, No. 1149, Oct. T., 1972, from order of Court of Common Pleas of Chester County, Jan. T., 1970, No. 66A, in case of Commonwealth of Pennsylvania v. Isaac Martinas. Order affirmed.
Petition for post-conviction relief.
Order entered dismissing petition, opinion by WAJERT, J. Defendant appealed.
W. Peter Barnes, Assistant Public Defender, for appellant.
F. Ned Hand, Assistant District Attorney, and William H. Lamb, District Attorney, for Commonwealth, appellee.
Submitted March 19, 1973.
This is an appeal from the denial of appellant's second petition for relief under the Post Conviction Hearing Act, which raised the same issue as was raised in his first petition.
Appellant pleaded guilty to charges of burglary, robbery, and possession of narcotics. A police officer and appellant related similar stories as to the burglary and robbery. However, there was no evidence to support a conviction for possession of narcotics. Appellant admitted he had used narcotics, and the police officer said appellant acted as if he were high; there was no indication that narcotics were found in appellant's possession. The lower court nevertheless accepted appellant's pleas on all three charges, and sentenced him to one to five years for burglary, one to five years for possession of narcotics, and five to twenty years for robbery, the sentences to run consecutively.
Under The Drug, Device and Cosmetic Act in effect at the time of sentencing, the longest sentence appellant could have received for use of narcotics would have been one year. Act of September 26, 1961, P.L. 1664, § 20, as amended, 35 P. S. § 780-20.
Appellant seems to have a meritorious claim under the doctrine of Commonwealth v. Sampson, 445 Pa. 558, 285 A.2d 480 (1971), which held that a guilty plea should not be accepted if facts are adduced at the hearing that indicate that appellant might have a defense to the charge. Appellant presented this claim in his first Post Conviction Hearing Act petition, but the hearing judge denied relief. It is argued to us that appellant intended to appeal the denial but that as a result of a misunderstanding with counsel an appeal was never taken.
Since the Sampson claim was litigated in the first petition we affirm the decision of the lower court denying appellant's second petition, without prejudice, however, to appellant's right to file a request with the lower court for leave to file an appeal nunc pro tunc from the denial of the first petition. I am aware that appellant has filed such a request with this court, and that it was denied. That denial, however, was proper, as a hearing will be necessary to determine whether the request should be granted, and should not prejudice a request filed, as it should have been, with the lower court.
The order of the court below is affirmed.