Opinion
Submitted March 11, 1968.
November 12, 1968.
Criminal Law — Practice — Post-conviction relief — Failure to raise issue at prior collateral proceeding — Waiver — Defendant represented by counsel at prior proceeding — Presumption — Post Conviction Hearing Act.
1. Under § 4(b)(1) of the Post Conviction Hearing Act of January 25, 1966, P. L. (1965) 1580, a knowing and understanding failure to raise an issue at a prior collateral proceeding acts as a waiver of that issue. [325]
2. Under § 4(c) of the Post Conviction Hearing Act, a failure to raise an issue is rebuttably presumed to be knowing and understanding where defendant was represented by counsel at his prior collateral proceeding. [325]
Mr. Justice MUSMANNO did not participate in the decision of this case.
Mr. Justice COHEN took no part in the consideration or decision of this case.
Before BELL, C. J., MUSMANNO, JONES, EAGEN, O'BRIEN and ROBERTS, JJ.
Appeal, No. 43, March T., 1968, from order of Court of Quarter Sessions and Court of Oyer and Terminer and General Jail Delivery of Westmoreland County, July T., 1958, No. 336 Q.S., and July T., 1958, No. 4 O. T., in case of Commonwealth ex rel. Elmer Carl Linde v. James F. Maroney, Superintendent. Order affirmed; reargument refused December 19, 1968.
Proceeding under Post Conviction Hearing Act.
Petition dismissed without hearing, order by SCULCO, J. Defendant appealed.
Elmer Carl Linde, appellant, in propria persona.
Gilfert M. Mihalich, Assistant District Attorney, and Joseph M. Loughran, District Attorney, for Commonwealth, appellee.
Appellant, whom we have met before, see Commonwealth ex rel. Linde v. Maroney, 420 Pa. 31, 215 A.2d 628 (1966); Commonwealth ex rel. Linde v. Maroney, 416 Pa. 331, 206 A.2d 288 (1965), claims that he was not informed of his right to direct appeal, with free counsel if necessary, in violation of Douglas v. California, 372 U.S. 353, 83 S.Ct. 814 (1963). Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968). Appellant's petition was dismissed below without a hearing.
Appellant has had a prior collateral hearing at which he was represented by counsel. Under § 4(b)(1) of the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, 19 P. S. § 1180-4(b)(1), a knowing and understanding failure to raise an issue at a prior collateral proceeding acts as a waiver of that issue. Section 4(c) provides that failure to raise an issue is rebuttably presumed to be knowing and understanding, where as here appellant was represented by counsel at his prior collateral proceeding, see Commonwealth v. Satchell, 430 Pa. 443, 243 A.2d 381 (1968); Commonwealth v. Mumford, 430 Pa. 451, 243 A.2d 440 (1968), there is no indication that appellant's failure to raise his Douglas claim was not knowing and understanding. Thus the claim has been waived.
The order of the court below is affirmed.
Mr. Justice MUSMANNO did not participate in the decision of this case.
Mr. Justice COHEN took no part in the consideration or decision of this case.