Opinion
July 14, 1967.
Criminal law — Post-conviction hearing — Petition — Request for counsel — Post Conviction Hearing Act.
In a petition filed under the Post Conviction Hearing Act of 1966, P. L. (1965) 1580, in which petitioner requests counsel and alleges that he is without means to procure counsel the court must act in accordance with § 12 of the Act which provides "If appointment of counsel is so requested, the court shall appoint counsel if satisfied that the petitioner has no means to procure counsel."
Before BELL, C. J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
Appeal, No. 415, Jan. T., 1967, petition for allocatur, from order of Superior Court, Oct. T., 1966, No. 812, affirming order of Court of Oyer and Terminer of Cumberland County, Dec. T., 1955, No. 2, in case of Commonwealth of Pennsylvania v. Richard U. T. Hoffman. Allocatur granted, order of Superior Court reversed and order of court below vacated.
Same case in Superior Court: 209 Pa. Super. 736.
Petition under Post Conviction Hearing Act.
Petition dismissed without hearing, opinion and order by SHUGHART, P. J. Defendant appealed to Superior Court which affirmed order, MONTGOMERY, J., dissenting. Defendant petitioned Supreme Court for an allocatur.
Richard U. T. Hoffman, petitioner, in propria persona.
John B. Fowler, III, Assistant District Attorney, and Richard C. Snelbaker, District Attorney, for Commonwealth, respondent.
Richard U. T. Hoffman filed a petition on May 27, 1966 under the Post Conviction Hearing Act in the Court of Oyer and Terminer of Cumberland County. In his petition, Hoffman stated, inter alia, that he was financially unable to employ an attorney to represent him in post-conviction proceedings and requested appointment of counsel for that purpose. Notwithstanding this and despite § 12 of the Post Conviction Hearing Act: "If the petitioner is without counsel and alleges that he is without means to procure counsel, he shall state whether or not he wishes counsel to be appointed to represent him. If appointment of counsel is so requested, the court shall appoint counsel if satisfied that the petitioner has no means to procure counsel." Act of January 25, 1966, P. L. (1965) 1580, § 12, 19 P. S. § 1180-12 (Supp. 1966), the court of oyer and terminer proceeded to consider and dismiss Hoffman's petition without appointing counsel or finding that Hoffman had means to procure his own counsel. The Superior Court, with Judge MONTGOMERY dissenting, affirmed this dismissal, Commonwealth v. Hoffman, 209 Pa. Super. 736, 226 A.2d 209 (1967) (per curiam) and the instant petition for allowance of appeal was brought.
Since there is no suggestion in this record that Hoffman had means to employ an attorney in the post-conviction proceeding, the failure of the court of oyer and terminer to appoint one to represent him was clear error. Therefore, without reaching the merits of Hoffman's petition and without reaching the question of whether Hoffman is entitled to an evidentiary hearing on his petition, we reverse the Superior Court and vacate the order of the court of oyer and terminer so that an attorney may be appointed to represent Hoffman in the court of oyer and terminer.
Indeed, the court of oyer and terminer permitted the petitioner to proceed in forma pauperis. Hence there can be little doubt that it was satisfied that he had no means to procure counsel.
The petition for allocatur is granted. The order of the Superior Court is reversed. The order of the Court of Oyer and Terminer of Cumberland County is vacated and the record remanded to that court with instructions to appoint counsel to represent Richard Hoffman in a post-conviction proceeding at which Hoffman's eligibility for an evidentiary hearing and/or other relief may be determined.