Commonwealth v. Butler

• Decision Date: 22 April 1971
• Citation: 276 A.2d 536,442 Pa. 476
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Thomas A. BUTLER, Appellant.
• Court: Pennsylvania Supreme Court

276 A.2d 536

442 Pa. 476

COMMONWEALTH of Pennsylvania, Appellee, v. Thomas A. BUTLER, Appellant.

Supreme Court of Pennsylvania.

April 22, 1971.

On November 6, 1968, appellant filed the instant post-conviction petition alleging that he was denied his constitutional right of appeal. The post-conviction court dismissed the petition by opinion and order without a hearing on February 24, 1969. In its opinion, the court justified the dismissal of appellant's petition by stating that the appellant had already 'exhausted his rights under the Post Conviction Hearing Act of 1966 * * *' because of the 1963 habeas corpus proceedings.

Apparently the court reasoned that appellant's failure to raise the issue of the denial of his right of appeal was a waiver of his right to litigate the issue and that there was no right to a hearing on the matter. This was error. In Commonwealth v. Cannon, Pa., 275 A.2d 293 (1971), we held that the waiver provision of the Post Conviction Hearing Act does not apply retroactively to habeas corpus proceedings instituted prior to the effective date of the Act. That ruling is dispositive of the instant case.

Order reversed and case remanded for proceedings consistent herewith.

COHEN, J., did not participate in the decision of this case.