Opinion
November 10, 1969.
March 12, 1970.
Criminal Law — Counsel for defendant — Effectiveness — Length of conference with defendant — Representation of codefendant — Conflict of interest — Petition for post-conviction relief.
Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and CERCONE, JJ.
Appeal, No. 260, April T., 1969, from order of Court of Common Pleas of Somerset County, Nov. T., 1967, Nos. 1 and 2, in case of Commonwealth of Pennsylvania v. Robert Lee Stull. Order affirmed.
Petition for post-conviction relief.
Order entered dismissing petition, opinion by LANSBERRY, P.J. Petitioner appealed.
Wilbert H. Beachy, Jr., for appellant.
Alexander Ogle, District Attorney, for appellee.
HOFFMAN, J., filed a dissenting opinion, in which JACOBS and SPAULDING, JJ., joined.
Submitted November 10, 1969.
Order affirmed.
Appellant pleaded guilty to criminal charges and did not appeal. He then filed a petition under the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, 19 P. S. § 1180, alleging ineffective assistance of counsel at trial. His petition indicated at least two bases for his allegation: (1) Counsel conferred with appellant for only a short period of time. (2) Counsel's representation of a codefendant created a conflict of interest. No answer to this petition by the Commonwealth appears of record. The PCHA court denied appellant's petition without a hearing. This appeal followed.
I dissent for the reasons stated at length in my dissenting opinion in Commonwealth v. Jackson, 216 Pa. Super. 122, 264 A.2d 182 (1970). Appellant's allegations are neither frivolous nor clearly controverted by the record. If true, his plea of guilty may be vitiated. See, e.g., Commonwealth v. Cullen, 216 Pa. Super. 23, 260 A.2d 818 (1969). If the PCHA court believed, however, that the allegations as they appeared on the petition were insufficient to state a ground for relief, the court should have granted leave to amend. Section 7, 19 P. S. § 1180-7.
I would reverse the order of the lower court and remand the record to permit appellant to amend his petition.
JACOBS and SPAULDING, JJ., join in this dissent.