Opinion
March 18, 1968.
June 13, 1968.
Criminal Law — Practice — Post-conviction relief — Averments of petition — Right to hearing.
Where a petitioner for post-conviction relief alleges facts which, if proved, entitle him to relief, and his allegations are not refuted by the record, he is entitled to a hearing.
Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and HANNUM, JJ.
Appeal, No. 299, Oct. T., 1968, from order of Court of Quarter Sessions of Lancaster County, Dec. T., 1965, No. 140, in case of Commonwealth of Pennsylvania v. George Marion Rush. Order vacated and case remanded.
Petition for post-conviction relief.
Order entered dismissing petition without hearing, opinion by JOHNSTONE, JR., J. Petitioner appealed.
George Marion Rush, appellant, in propria persona.
No argument was made nor brief submitted by Commonwealth, appellee.
Submitted March 18, 1968.
Petitioner filed a petition under the Post Conviction Hearing Act in November, 1967, alleging ineffective assistance of counsel and that counsel had a conflict of interest because he represented a co-defendant. Petitioner also alleged that he was denied the assistance of counsel to perfect an appeal in accordance with Douglas v. California, 372 U.S. 353 (1963).
The lower court denied the petition without holding a hearing.
Our Supreme Court has often stated that: "The allegations of the petition, if true, entitle petitioner to relief, and since his allegations are not refuted by the record, he is entitled to a hearing, to determine the truth or falsity of his allegations. Commonwealth v. Wood, 425 Pa. 612, 230 A.2d 729 (1967)." Commonwealth v. Dennis, 427 Pa. 69, 70, 233 A.2d 525 (1967). Similarly in the case at bar, petitioner has alleged facts, which if true, entitle him to relief.
Thus, the order of the Court of Quarter Sessions of Lancaster County is vacated, and the case is remanded with instructions to conduct an evidentiary hearing at which petitioner is represented by counsel to determine whether petitioner is entitled to relief.