463 A.2d 1179 | Pa. Super. Ct. | 1983
Appellant Matthew Gray appeals the trial court’s summary dismissal
On this appeal, appellant argues that his petition should not have been dismissed without a hearing, especially in view of the lack of a transcript from the original plea colloquy. We agree. Under the Post-Conviction Hearing Act, the court may dismiss- a petition without a hearing if the petitioner’s claims are patently frivolous and without a trace of support in the record. 19 P.S. § 1180-9. Unless a court is absolutely certain of the patent frivolousness of an issue in a post-conviction petition, it must grant a hearing. Commonwealth v. Laboy, 460 Pa. 466, 333 A.2d 868 (1975). In borderline cases, the petitioner should be given “every conceivable legitimate benefit” in favor of the grant of a hearing. Commonwealth v. Reider, 267 Pa.Super. 359, 406 A.2d 1081 (1979). If, on review, we are unable to tell from the state of the record whether appellant’s claims are frivolous and without support, we must remand for an evidentiary hearing. Commonwealth v. Swift, 299 Pa.Super. 77, 445 A.2d 156 (1982).
In this case, appellant alleges, inter alia, that his plea was not knowingly and voluntarily entered. Even in cases where we have had a record of the plea colloquy, we have recognized the petitioner’s right to present additional evidence where that record did not clearly refute his claim.
Orders vacated and case remanded for an evidentiary hearing. We do not retain jurisdiction.
. Two orders, dated June 1, 1981, and June 17, 1981, were entered by the lower court. Both orders denied post-conviction relief without a hearing. Appellant’s two appeals from these orders were consolidated and this opinion relates to both orders.
. The Commonwealth contends, in addition, that appellant has waived these claims. Appellant alleges, however, trial counsel’s ineffectiveness in this regard. Since this is the first proceeding at which appellant has been represented by counsel other than trial counsel and since we do not have the benefit of a trial court’s factual findings on this issue, we cannot, at this stage of the proceedings, agree. See, Commonwealth v. Paige, 287 Pa.Super. 133, 429 A.2d 1135 (1981).