Opinion
February 15, 1968.
Criminal law — Constitutional law — 6th and 14th Amendments — Right to counsel — Counsel on appeal — Waiver of right — Post Conviction Hearing Act.
Where a post-conviction petition, filed by a petitioner who was serving a sentence for burglary and larceny following a plea of guilty, averred, without record contradiction, that his trial counsel did not inform him of his constitutional right to the assistance of counsel for purposes of appeal it was Held, in view of the Post Conviction Hearing Act of 1966, P. L. (1965) 1580, § 9 that a hearing on the petition was required.
Before BELL, C. J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
Appeal, No. 122, March T., 1968, from order of Superior Court, April T., 1967, No. 283, affirming order of Court of Quarter Sessions of Westmoreland County, Jan. T., 1964, Nos. 27 and 28, in case of Commonwealth of Pennsylvania v. Steve Sapp. Allocatur granted, orders of Superior Court and Court of Quarter Sessions of Westmoreland County reversed and record remanded to latter court for proceedings consistent with this opinion.
Same case in Superior Court: 211 Pa. Super. 741.
Proceeding under Post Conviction Hearing Act.
Petition denied without hearing. Defendant appealed to Superior Court which affirmed order. Petition for allocatur filed with Supreme Court.
Steve Sapp, petitioner, in propria persona.
Gilfert M. Mihalich, Assistant District Attorney, and Joseph M. Loughran, District Attorney, for Commonwealth, respondent.
Steve Sapp was sentenced after a plea of guilty to a minimum of five and a maximum of ten years on one count of burglary and one count of larceny. After serving approximately three and one-half years of this sentence, Sapp filed in April of 1967 a petition under the Post Conviction Hearing Act. This petition was denied without a hearing by the Court of Quarter Sessions of Westmoreland County and this denial affirmed without opinion by the Superior Court. A petition for allocatur was filed and is hereby granted.
Sapp alleged, an allegation uncontradicted of record, that trial counsel did not inform him that he had the right to the assistance of counsel for purposes of appeal. Nor does it appear of record that the trial court so informed Sapp. Thus, a denial of the right mandated in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814 (1963) was alleged. Section 9 of the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, § 9, 19 P. S. § 1180-9 (Supp. 1966), clearly requires that a hearing be held when a petition alleges facts which, if proven, would entitle petitioner to relief. A hearing on Sapp's Douglas claim was therefore necessary.
We reject, as we have in the past, the Commonwealth's theory that the grant of Douglas relief after the entry of a guilty plea would be fruitless. This argument is premised upon the fact a conviction based upon a plea of guilty offers no grounds for appellate attack, a premise rejected in both Commonwealth ex rel. Neal v. Myers, 424 Pa. 576, 581, 227 A.2d 845, 847 (1967) and Commonwealth ex rel. Booker v. Maroney, 424 Pa. 394, 403, 227 A.2d 168, 174 (1967).
The order of the Superior Court is reversed. The order of the Court of Quarter Sessions of Westmoreland County is reversed and the record remanded to that court for proceedings consistent with this opinion.