Opinion
November 28, 1969.
Criminal Law — Practice — Post-conviction proceedings — Counsel for indigent petitioner — Representation of petitioner in full and complete sense, not as adjunct to court — Issues in first petition not finally litigated — Denial of right to appeal — Right to evidentiary hearing — Averment of facts entitling petitioner to relief — Knowledge of acts which comprise crime — Knowing and voluntary plea — Post Conviction Hearing Act.
1. The requirement of the Post Conviction Hearing Act that indigent petitioners be represented by counsel contemplates the appointment of an independent attorney who will represent petitioner in a full and complete sense; it does not contemplate that counsel should act as an adjunct to the court in its screening of post-conviction petitions. [161]
2. In this case, in which it appeared that the court below, at the request of petitioner in his first petition for post-conviction relief, appointed counsel to assist him with his petition and directed counsel to investigate the allegations of the petition and file a report to assist the court in determining the necessity of an evidentiary hearing; that counsel complied with this request and reported that there was no basis for the petition, and that it should be dismissed without a hearing; and that on the basis of this report and its own review of the record the court below dismissed the petition; it was Held, in the circumstances, that petitioner was not represented by counsel in any meaningful sense on his first petition for post-conviction relief, and that it could not be concluded, therefore, that any issues raised in the first petition were finally litigated by the adverse decision of the lower court and the failure of petitioner to appeal.
3. In a case not involving a murder charge, an allegation that petitioner was denied the right to appeal following a guilty plea is not a ground for post-conviction relief, since the only issues which may be raised may be heard in a collateral proceeding. [162]
4. Under § 9 of the Post Conviction Hearing Act, an evidentiary hearing is required where the petitioner alleges facts that if proven would entitle him to relief. [162]
5. In this case, in which it appeared that petitioner (who had pleaded guilty to charges of statutory rape and abusing a woman child), alleged that his counsel misinformed him as to the elements of the offenses with which he was charged, and that he was denied the assistance of effective counsel at the time of his guilty plea, it was Held that petitioner was entitled to an evidentiary hearing.
6. Knowledge of the acts which comprise the crime with which an accused is charged is a prerequisite to a knowing and voluntary plea. [162]
Before BELL, C. J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
Petition for leave to appeal, No. 246, Jan. T., 1970, No. 188-A Miscellaneous Docket No. 17, from order of Superior Court, No. 21, Oct. T., 1969, affirming order of Court of Oyer and Terminer of Lackawanna County, Nov. T., 1964, No. 13, in case of Commonwealth v. Howard R. Seymour. Order of Superior Court reversed and case remanded.
Same case in Superior Court: 214 Pa. Super. 774.
Petition for post-conviction hearing.
Order entered dismissing petition, opinion by HOBAN, P. J. Petitioner appealed to the Superior Court, which affirmed the order of the court below. Petition for allocatur filed in Supreme Court.
Joseph T. McGraw, Public Defender, for petitioner.
Robert W. Munley, Assistant District Attorney, and Joseph J. Cimino, District Attorney, for Commonwealth, appellee.
Following his plea of guilty to charges of statutory rape and abusing a woman child, petitioner was sentenced to three to six years in prison on December 8. 1964, by the Court of Quarter Sessions of Lackawanna County. At the time of his plea and at his sentencing, petitioner was represented by court-appointed counsel.
In July, 1968, petitioner filed a Post Conviction Hearing Act petition alleging, inter alia, the denial of his right to be advised of his right to appeal and the denial of his right to the assistance of competent counsel at the time of his plea. Act of January 25, 1966, P. L. (1965) 1580, 19 P. S. § 1180. The court below, at petitioner's request, appointed counsel to assist him with his petition and directed counsel to investigate the allegations of the petition and file a report to assist the court in determining the necessity of an evidentiary hearing.
Counsel complied with this request and reported that "there is no basis for this petition, and it should be dismissed without a hearing." On the basis of this report and its own review of the record, the court dismissed the petition. No appeal was taken from that action.
We must initially disapprove the course of conduct pursued in this PCHA proceeding. The statutory provision that indigent petitioners be represented by counsel in such proceedings does not contemplate that counsel should act as an adjunct to the court in its screening of post-conviction petitions. Rather it contemplates the appointment of an independent attorney who will represent petitioner in a full and complete sense. In these circumstances we hold that petitioner was not represented by counsel in any meaningful sense on his first PCHA petition. It cannot be concluded, therefore, that any issues raised in the first PCHA petition were finally litigated by the adverse decision of the lower court, and the failure of petitioner to appeal. See 19 P. S. § 1180-4; Commonwealth v. Kizer, 428 Pa. 99, 236 A.2d 515 (1967).
Twenty days after the denial of his first petition, petitioner filed a second PCHA petition, alleging the same grounds for relief mentioned above. Petitioner again requested the appointment of counsel; this re quest was denied, and the petition was dismissed without hearing by the court below on the theory that it was nothing but a repetition of the original petition. After a per curiam affirmance of this dismissal by the Superior Court, the present petition for allowance of appeal was brought. The issue raised is whether the dismissal of the petition without an evidentiary hearing was error.
The standard upon which a court must judge whether an evidentiary hearing shall be held is set forth in Section 9 of the Post Conviction Hearing Act: "If a petition alleges facts that if proven would entitle the petitioner to relief, the court shall grant a hearing which may extend only to the issues raised in the petition or answer."
In a case not involving a murder charge, an allegation that petitioner was denied the right to appeal following a guilty plea is not a ground for post-conviction relief since the only issues which may be raised may be heard in a collateral proceeding. See Commonwealth v. Stokes, 426 Pa. 265, 232 A.2d 193 (1967).
Accordingly, petitioner's only possible ground for relief is his contention that he was denied the assistance of effective counsel at the time of his guilty plea. Petitioner here alleges that his counsel misinformed him as to the elements of the offense with which he was charged. Since knowledge of the acts which comprise the crime with which an accused is charged is a prerequisite to a knowing and voluntary plea, if petitioner was, in fact, improperly advised of the elements of the offense, the knowing quality of his guilty plea is brought into question. We hold, therefore, that petitioner did allege a fact which, if proven, would entitle him to relief and that he was entitled to an evidentiary hearing on his petition.
The order of the Superior Court is reversed and the case is remanded to the Court of Common Pleas of Lackawanna County with directions to appoint counsel for petitioner and to hold an evidentiary hearing on the question of whether or not the legal representation at the time of entering the guilty plea was effective.