Opinion
Submitted September 25, 1967.
November 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."
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. 188, March T., 1967, from order of Court of Oyer and Terminer of Fayette County, Sept. T., 1962, No. 32/119, in case of Commonwealth of Pennsylvania v. Steve Minnick. Order vacated.
Proceeding under Post Conviction Hearing Act.
Petition dismissed. Defendant appealed.
Steve Minnick, appellant, in propria persona.
William J. Franks, First Assistant District Attorney, and John R. Hoye, District Attorney, for Commonwealth, appellee.
Appellant, Steve Minnick, was after a plea of guilty adjudged to have committed second degree murder and sentenced to 6-12 years. No appeal from this conviction was prosecuted. His first attempt to obtain post-conviction relief under the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, 19 P. S. § 1180-1 et seq. (Supp. 1966) was unsuccessful. This appeal followed.
In his post-conviction petition Minnick checked the block on the post-conviction application form indicating that he was without funds and requested the appointment of an attorney. The court below was apparently satisfied that Minnick was in fact indigent for it granted leave to proceed "as a poor person." However, for the reasons stated in Commonwealth v. Mitchell, 427 Pa. 395, 235 A.2d 148 (1967); Commonwealth v. Richardson, 426 Pa. 419, 233 A.2d 183 (1967) and Commonwealth v. Hoffman, 426 Pa. 226, 232 A.2d 623 (1967), appointment of counsel under § 12 of the Post Conviction Hearing Act is mandatory. To effectuate this legislative mandate we must vacate the order below and remand the record to the lower court for appointment of counsel. We do not therefore treat the merits of any of appellant's contentions.
The order of the Court of Oyer and Terminer of Fayette County is vacated and the record remanded to that court with instructions to appoint counsel to represent Steve Minnick in a post-conviction proceeding at which his eligibility for an evidentiary hearing and/or other relief may be determined.
Mr. Justice COHEN took no part in the consideration or decision of this case.