Opinion
March 20, 1972.
May 18, 1972.
Appeals — Counsel for defendant — Effective assistance — Rules promulgated in Anders and in Baker — Statement in brief of counsel that argument submitted is without merit — Petition to withdraw.
SPAULDING, J., filed a dissenting opinion, in which HOFFMAN, J., joined.
Submitted March 20, 1972.
Before WRIGHT, P.J., WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE, and PACKEL, JJ.
Appeal, No. 125, Oct. T., 1972, from order of Court of Common Pleas of Montgomery County, June T., 1968, Nos. 462 and 494, in case of Commonwealth of Pennsylvania v. Alfonso Golson. Order affirmed.
Petition for post-conviction relief.
Order entered dismissing petition, opinion by LOWE, J. Defendant appealed.
Arthur J. King, Assistant Public Defender, for appellant. Stewart J. Greenleaf, Assistant District Attorney, William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.
Order affirmed.
I respectfully dissent.
This is an appeal from the denial of appellant's Post Conviction Hearing Act petition by the Court of Common Pleas of Montgomery County. Appellant contends that his sentence to consecutive, rather than concurrent prison terms was invalid and that a change in his sentence after he had started serving it subjected him to double jeopardy. A hearing on the petition was held on October 18, 1971, and the petition was subsequently dismissed. This appeal followed.
Appellant has been denied the effective assistance of counsel on this appeal under the rules promulgated in Anders v. California, 386 U.S. 738 (1967), rehearing denied, 388 U.S. 924 (1967); and Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968). As the Supreme Court of Pennsylvania stated in Baker, at 211: " Anders emphasizes, throughout the Court's opinion, that the brief must be that of an advocate not amicus curiae". (Emphasis in original.) Here, while counsel has explored appellant's claims in some detail, he states, in a section of his brief entitled "Attorney's Notation": "Under the guidelines of Anders v. California, 386 U.S. 738 (1967), as applied to Pennsylvania in Commonwealth v. Baker, 429 Pa. 209 (1968), . . ., appellant's counsel submits legal argument on appellant's behalf, though counsel believes such argument to be frivolous and without merit." Baker, supra, allows that such language in counsel's brief may be treated the same as a separate petition to withdraw.
See Commonwealth v. Covington, 218 Pa. Super. 242, 276 A.2d 312 (1971), where we held Anders and Baker applicable to appeals from the dismissal of PCHA petitions.
I would treat counsel's brief as a petition to withdraw, continue the case as a perfected appeal, and allow appellant to file a pro se brief if he so desires.
HOFFMAN, J., joins in this dissenting opinion.