Commonwealth v. Dorian

SPAETH, Judge, dissenting:

I am unable to join the majority in affirming the lower court’s order denying appellant’s P. C. H. A. petition without a hearing. As transmitted to us, the record is incomplete; the lower court’s very brief opinion does not address the issues raised by appellant pro se; and counsel appointed to *166represent appellant has filed no brief. I should therefore remand for completion of the record and appointment of new counsel.

As the majority notes, appellant was sentenced in 1951 and 1954, and then, when the 1951 sentence was vacated, in 1965 he was resentenced on the 1951 charges. As filed on August 26, 1980, appellant’s P. C. H. A. petition challenged the legality of the sentences imposed in 1954; as amended on October 23, 1980, the petition further challenged the legality of the sentence imposed in 1965. Although the petition, the lower court’s order, and appellant’s notice of appeal all include the docket numbers of the 1954 charges, the lower court has provided us with no record pertaining to those charges. As transmitted to us, the record pertains only to the 1951 charges.

Appellant indicated on his petition that he did not wish counsel to be appointed, but after the lower court denied the petition, he asked that counsel be appointed to assist him on this appeal. On January 20, 1981, the lower court did appoint counsel. That counsel has never entered his appearance, either in the lower court or this court, nor has he filed a brief in this court. On appellant’s behalf we have only appellant’s brief pro se.

In these circumstances, I am unable to reconstruct the history of appellant’s contacts with the criminal justice system over the past 30 years. The majority’s account draws on facts contained in the briefs but not in the record. However, as best I can understand appellant’s argument, it is not as the majority states it. Instead, appellant appears to argue, first, that the length of the 1954 sentences was affected by the sentencing court’s view of what happened in 1951—a view that proved inconsistent with the findings of the federal court in 1965, and second, that the sentence imposed in 1965 was invalid because its minimum term, of two and one half years, was longer than the period he had already served, of twenty months. These arguments may have no merit. However, before dismissing them we should have the benefit of a complete record and an advocate’s brief.

*167I should remand for further proceedings consistent with this opinion.