Opinion
June 12, 1967.
September 15, 1967.
Criminal Law — Counsel for defendant — Appeal — Refusal of counsel to take appeal except at prohibitive cost.
1. Absent a waiver, an indigent defendant is entitled to the appointment of counsel to prosecute his appeal.
2. Petitioner for post-conviction relief alleged, inter alia, that his court appointed attorney refused to appeal unless petitioner paid him $750. Petitioner further averred that the court below not only failed to furnish him, an indigent person, with competent counsel to appeal, but failed also to inform petitioner of his right to appeal. The petition was dismissed without hearing.
It was Held that petitioner's averments raised issues of fact which required a hearing. The order of the court below was vacated and the record remanded to that court for hearing.
Before ERVIN, P.J., WRIGHT, WATKINS, MONTGOMERY, JACOBS, HOFFMAN, and SPAULDING, JJ.
Appeal, No. 473, Oct. T., 1967, from order of Court of Quarter Sessions of Philadelphia County, May T., 1954, Nos. 469 to 471, inclusive, in case of Commonwealth of Pennsylvania v. Nathaniel R. Spencer. Record remanded.
Petition for post-conviction relief.
Petition dismissed without hearing, opinion by REED, J. Petitioner appealed.
Nathaniel R. Spencer, appellant, in propria persona.
Welsh S. White and Alan J. Davis, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Submitted June 12, 1967.
This is an appeal from the dismissal, without hearing, of a petition for post-conviction relief.
Petitioner was convicted, after jury trial, of aggravated robbery, and received a sentence of 20 to 40 years.
In his post-conviction petition he alleges, inter alia, that: "My court appointed attorney refused to appeal unless I paid him $750.00." He further avers: "The court below not only failed to furnish the defendant, an indigent person with competent counsel to appeal the unjust and unlawful conviction but failed also to inform appellant of his right to appeal." The District Attorney does not deny these allegations but suggests, instead, that petitioner is protesting the denial of counsel in this post-conviction proceeding and the appeal therefrom. We do not so read the petition.
On this point, see Commonwealth v. Hoffman (No. 1), 426 Pa. 226, 232 A.2d 623 (decided July 14, 1967).
It is settled that, absent a waiver, an indigent defendant is entitled to the appointment of counsel to prosecute his appeal. Commonwealth ex rel. Robinson v. Myers, 420 Pa. 72, 215 A.2d 637 (1966). Appellant alleges that he was denied counsel on direct appeal, that counsel, in effect, refused to take an appeal, except at prohibitive cost. This averment raises an issue of fact which requires a hearing. The nature of the inquiry to be made is set forth at length in Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1, 22, 213 A.2d 613 (1965).
The order of the court below is vacated, and the record is remanded to that court for hearing. If the court should determine that there was no violation of petitioner's constitutional rights, the petition should be dismissed. If, on the other hand, the court should find that petitioner was deprived of his right to the assistance of counsel or appeal, it should enter an order to that effect, appointing counsel for petitioner. On motion of appointed counsel, this Court will permit the docketing of an appeal from judgment of sentence, as if timely filed.