Com. v. Clayton
Decision Date | 17 December 1981 |
Citation | 437 A.2d 1147,496 Pa. 492 |
Parties | COMMONWEALTH of Pennsylvania v. Preston CLAYTON, Appellant. |
Court | Pennsylvania Supreme Court |
Robert B. Lawler, Chief, Appeals Div., Deborah Fox, Philadelphia, for appellee.
Before O'Brien, C. J., and ROBERTS, NIX, LARSEN, FLAHERTY, KAUFFMAN and WILKINSON, JJ.
This is an appeal from an order of the Court of Common Pleas of Philadelphia denying appellant Preston Clayton leave to file an appeal, as if timely filed, from convictions of murder of the third degree and conspiracy. We affirm.
Appellant was found guilty by a court sitting without a jury on January 3, 1977. Appointed trial counsel filed a timely motion in arrest of judgment or for a new trial on appellant's behalf. On March 15, 1977, the court denied relief and imposed a sentence of six to twenty years' imprisonment for the murder. The court also imposed a sentence of five to ten years' imprisonment for the conspiracy, to run concurrent to the murder sentence.
Immediately after imposing sentence, the court stated:
No appeals were timely filed.
On May 1, 1978, nearly fourteen months after imposition of sentence, appellant filed a petition with this Court seeking leave to file an appeal from the murder conviction as if timely filed. Appellant alleged that, following his convictions he had "wished to take an appeal and thought that his counsel had filed an appeal for (him)." This Court remanded the petition to the court of common pleas with the direction to treat the matter as a petition for post-conviction relief.
New counsel was appointed to assist appellant in this proceeding. Following the appointment, counsel filed an amended petition for post-conviction relief which contained allegations identical to those contained in the petition which appellant had filed with this Court. The Commonwealth denied appellant's allegations, and the court fixed a hearing date.
At the hearing, held in April of 1980, appellant claimed on direct examination that appointed trial counsel had told him that an appeal would be filed. He further claimed that, upon learning that no appeal had been filed on his behalf, he had immediately commenced the present proceedings. On cross-examination, appellant acknowledged that the court had explained that an appeal would have to be taken within thirty days of the entry of sentence, and that he had made no inquiry regarding the status of the matter for approximately one year, until shortly before the present proceedings commenced.
Additionally, on cross-examination, appointed trial counsel stated that he had told appellant that appellant would have to "get back in touch within the thirty days...."
At the close of testimony, the court denied relief. The Court specifically rejected the testimony of appellant and chose to believe the testimony of appointed trial counsel. This appeal followed. *
Appellant is constitutionally guaranteed the right to appeal his convictions. Pa.Const. art. V, § 9; Douglas v....
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...a knowing, voluntary and intelligent waiver. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Commonwealth v. Clayton, 496 Pa. 492, 437 A.2d 1147 (1981); Commonwealth v. Cathey, 477 Pa. 446, 384 A.2d 589 (1978); Commonwealth v. Jones, 447 Pa. 228, 286 A.2d 892 (1971); Commonwe......
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